THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 107
PARTIES
Mr Labhras S. de Buitleir
and
Revenue Commissioners
(represented by Tony Kerr, B.L.)
File Reference: EE/2008/34
Date of Issue: 7th June, 2011
Headnotes: Employment Equality Acts, section 6,8, 14 and 77 - Section 6(2)(f), Age ground - Section 8(1)(d), Promotion/Re-grading - Consistory - Leadership competency - considered not suitable for promotion - statistics
1. Dispute
1.1. This case concerns a complaint by Mr. Labhras S. de Buitleir (hereinafter referred to as "the complainant") that he was discriminated against by the Revenue Commissioners (hereinafter referred to as "the respondent") on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts (hereinafter referred to as "the Acts") in relation to promotion/regarding, contrary to section 8(1)(d) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 30th May, 2008, alleging that the respondent had discriminated against him on the ground of age.
2.2 On the 3rd August, 2010, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on 20th January, 2011. Additional documentation was also sought from the respondent after the hearing and final correspondence in this respect was received from the complainant on 20th March, 2011.
3. Summary of the Complainant's case
3.1. The complainant submitted that he had worked for the Revenue Commissioners since 26th April, 1968 and had been appointed an Executive Officer (EO) in approximately July 1975. He submitted that he was discriminated against by the respondent on the age ground, specifically in relation to a competition for promotion that took place in 2007.
3.2. By way of background, the complainant submitted that, in 2003, he applied for a promotion to the grade of Higher Executive Officer (HEO) in the Revenue Commissioners. He provided documents to the Tribunal in relation to this competency-based competition and submitted that these documents showed that he gave a good display in all the relevant competencies, including the competency entitled "Leadership". In relation to this competition, he said that he went to the interview but was not successful. He said that he did not consider that he was discriminated against in relation to this competition as he was unsuccessful but was not told that he was not suitable.
3.3. The complainant submitted that subsequently, in 2005, he was considered for promotion to HEO on a 'seniority subject to suitability' basis and was placed on a panel but was not called for promotion during the lifetime of that panel. He could not recall whether an assessment of competencies formed part of this competition. He said, however, that his "Leadership" skills were considered acceptable at the time, in the context of the Performance Management and Development System (PMDS) process. In that context, he also submitted that his PMDS rating at the time showed that he was deemed 'well qualified' for promotion and that there was no aspect of his performance in his post at that time which might take from his performance at a higher grade.
3.4. The complainant submitted that, in 2007, he again applied for promotion to HEO on the basis of Seniority and Suitability and, on 10th January, 2008, he received a letter from the respondent stating that he had been deemed unsuitable for promotion. He submitted that he was discriminated against by the respondent with respect to this competition. He submitted that to be deemed 'not suitable' is an upsetting, degrading and insulting experience and he outlined the impact he said it has had on his professional confidence. He submitted that, in light of his previous PMDS ratings and his success at a 2005 promotion conference, it is completely illogical to say that he is suddenly deemed to be 'not suitable' when the only thing that has changed is his age.
3.5. The complainant submitted that he had always performed the duties assigned to him by the respondent to the very best of his ability, sometimes under difficult circumstances, and at other times at no small risk to his life. In that respect, he submitted to the Tribunal a summary of the tasks and assignments he had carried out for the respondent, citing particular examples of actions he had undertaken for the respondent and dangerous assignments that he had engaged in. He submitted that at no stage in his career had anyone ever said or intimated that he was in any way unsuitable for promotion.
3.6. The complainant also referred to the statistics provided by the respondent with respect to the age profiles of the candidates for the competition in question (see par. 4.15 below). He pointed to the fact that everyone below the age of 57 was successful but only two of the six candidates aged 57 or over were successful. He acknowledged that two 58 year old candidates, the age he was at the time, were successful but said that half of the 58 year olds and all of the 57 year olds were "knocked". He said that these figures showed that there was discrimination on the age ground with respect to this competition. He also pointed out that one of the persons on the panel with him, who had been offered a promotion in a 2005 competition but was unable to take it as it was not in a suitable location, was also not successful in the 2007 competition.
3.7. The complainant did not accept the respondent's submission that the members of the Conference were unaware of his age. He gave examples of members of that Conference who, he said, would have known his age and he outlined how they would have known it. In particular, he referred to Mr A, the chairman of the consistory Conference, who started in the civil service at the same time as him. He also described how Mr B, his District Manager (DM), who was at the 2007 consistory conference and was involved in the decision-making process in that respect, would have been aware of his age.
3.8. The complainant described how the consistory failed to give appropriate consideration to the examples of "Leadership" that he had given. He also said that the evidence of Mr A and Mr B given at the hearing was remarkably similar and was "exactly what he would have expected them to say" in order to prove their case. He also outlined inconsistencies he noted in the evidence of Mr. A. He added that the minutes provided by the respondent do not give a full account of what was said at the consistory and by whom.
3.9. In response to the respondent's submission that the examples he provided relating to "Leadership" were not sufficient to convince the consistory that he possessed the required level of competency, the complainant stated that these examples had been accepted previously (in his 2003 application). He said that he did not receive any training in relation to participation in the competition in question and was never told that he needed different examples for it. He said it would have been the duty of the respondent to provide him with the opportunity to improve the skills in question, and that he would have participated in any relevant and necessary courses in that respect. He said that he had discussed all the relevant skills with his Manager in the context of the PMDS process and a question was never raised about those skills. He added that the job he was in at the time did not provide great opportunity for displaying "Leadership".
3.10. The complainant said that he was always marked as being suitable for promotion in the context of the PMDS process, including in his rating in the year before the competition in question, and this process was the system that was in place to determine suitability for promotion. He said that he should have been informed somewhere in that process that he was not suitable for promotion. He added that the word 'unsuitable' has a very negative meaning. He also added that he had already been on a panel three years previously and was deemed suitable for promotion in that context. He said that nothing had changed in the meantime. He added that if Mr B, as his DM, did not feel he was suitable for promotion, then he should have told him that.
3.11. The complainant submitted that the decision was made to "strike me down" because he was close to retiring. He said this was because they wanted to "take as many of the oldest people out of it" as they could. He said he was eligible to retire at 60 but could have served until 65. He said he has retired since. He noted that the handwritten notes of the consistory provided at the hearing stated that he was "knocked on" and this was very similar to being "struck down". He said, in response to the respondent's submission that he would not have been promoted anyway even if he had been successful in the competition, that this was not the point as he was not even given a chance.
3.12. The complainant said that he was not aware of any general policy in Revenue not to promote people close to retirement. However, he later said there might be such a general policy, that this had been a reason for his failure to be placed on the panel for promotion, and that he did consider it should form part of my investigation.
4. Summary of the Respondent's case
4.1. The respondent strongly denied that the complainant was discriminated against on the grounds of age in not being considered suitable for promotion to HEO under the relevant circular. It submitted that the circular in question stated that the selection process would focus on the competencies appropriate to the HEO grade and gave a description of those competencies. It submitted that the 300 (approx.) most senior officers in the EO grade were invited to apply. It also required officers who wished to be considered for promotion to complete an application form, which provided the candidates "with the opportunity to demonstrate that they possess or have the capacity to acquire the required competencies for the Higher Executive Officer grade."
4.2. The respondent submitted that the circular required each of the Revenue Regions/Divisions to convene a promotion conference which was required to "consider all applications and make the final decision relating to the suitability/unsuitability of the applicant for promotion to the next grade." It submitted that all applicants declared suitable would then be placed on a national panel in order of seniority. It submitted that, in accordance with the circular, Revenue's Border Midlands West (BMW) Region convened a Promotion Conference on 12 December 2007. As the Assistant Secretary post was vacant at the time, the Conference was chaired by Mr A, who was a Principal Officer (PO), and was present at the hearing.
Evidence of Mr A
4.3. Mr A said that the question of age was not raised at the Conference in question, did not appear in any form that was given to the members of the Conference and did not form any part of the Conference's deliberations or references, neither for the complainant nor for any other applicant. He said that he was not aware that he and the complainant started in the Civil Service at the same time and categorically stated that he was not aware nor had he considered what the complainant's age was.
4.4. Mr A stated that the consistory members were provided with a copy of the application form of each candidate in advance. He said that, as Chair, he stressed that the consistory members had to consider each application based on the application form, and in particular the examples given, and that they had to consider whether the applicants were suitable under each of the relevant competencies. He said they went through the applications district by district and person by person within each district. He said that if no-one had a reservation about a particular applicant, then that applicant was approved. However, if someone had a reservation then it was expressed and the application discussed, particularly in relation to the competencies under consideration. He said that no vote was taken and decisions were reached by consensus.
4.5. Mr A said that he thought there were around 15-20 applications about which reservations were expressed. He said that each competency with each candidate was dealt with separately. He said they also looked at the recommendations and would have heard from the relevant DM, but that was not to say that the views of the relevant DM were the determining factor. He said that a general discussion followed about whether or not the examples given would convince the Conference that the candidate had the competency necessary to perform the duties of a HEO.
4.6. With respect to the specific application of the complainant, Mr A said that he recalled the Conference looking at the recommendation from the local manager as they considered that it was not a "ringing endorsement" but that Mr B clarified that it did not mean he was not suitable. He said that his recollection was that they went through the examples that were given by the complainant and that the examples he gave under "Leadership" were not sufficient. He said that his recollection was that a number of people, including himself, raised reservations about these examples. He said that they spent at least ten minutes discussing the application.
4.7. Mr A said that he was not aware of any policy not to promote people nearing retirement age and had never heard of such a policy being carried out. He also said he was not aware of the complainant's retirement plans.
Evidence of Mr B
4.8. Mr B said that the 2007 consistory was a separate competition that was judged solely on the competencies and the examples provided for that competition. He said that the consistory members had received the application forms in advance of the consistory to study them. He said that decisions had to be made by consensus and he did not recall any vote, but said that they would have had a vote if it was considered necessary. He said that they went through the forms district-by-district and went through the candidates one after the other in relation to each district.
4.9. Mr B said that Mr A stated the name of each candidate as they went along, and they would go through the competencies of that candidate. He said that Mr A would then have asked whether anyone had any doubt about any of the competencies with respect to that candidate. He said that, if no reservations were expressed about a candidate, then that candidate was deemed to be successful. He said that if a reservation was expressed, then the matter was debated. He said that the local manager would be asked and the comments of the Assistant Principal (AP) on the form would be looked at. He said that others would then "come in" with comments.
4.10. With regard to the complainant's particular application, Mr B said that doubts were expressed about the adequacy of the examples provided in relation to the "Leadership" competency. He said that he could not recall who raised these doubts. Nor could he recall specifically what reservations were expressed but, in general terms, he recalled that it was that the examples given did not appear to be adequate. However, he said that if it had been only one individual who raised these concerns that would not have caused problems and he did recall that a number of reservations were raised in that respect.
4.11. Mr B said that it was felt by the Conference in general that the examples in question did not sufficiently demonstrate the competency of good "Leadership". He said that it was felt that they showed he worked as part of a team but not necessarily that he was the leader of the team. Mr B said that one of the examples relating to "Leadership" was quite good but he had to concede that the other two or three were weak. So, he said that they debated for 10 to 15 minutes about the application, and in that debate he conceded the examples given were not strong and he was prepared to join the consensus in not considering the complainant to be successful.
4.12. Mr B added that, even if the Conference had known about the events described by the complainant that were not included on the form, they required to stick only to what was on the application form. He also said that a reservation was also expressed about the recommendation from the complainant's AP as it was felt by the Conference that the recommendation was muted. However, Mr B said that he explained that he did not feel that was the case. He said that he was not aware of the complainant's exact age, but knew he was in his mid-50's, and said that he was not aware of any policy not to promote people who are close to retirement.
Further General Submissions
4.13. With respect to what occurred at the consistory, the respondent essentially submitted, as per the evidence of Mr A and Mr B, that it was conducted in accordance with the relevant Circular and that fair procedures were followed. In that respect, it submitted to the Tribunal, as supporting documentation, the minutes of the Conference, and an e-mail. This e-mail, from Mr A to human resources, which was sent for the purposes of this complaint, stated that the Conference was run in accordance with the instructions and that the Conference members considered only the examples of the competencies given by the candidates in their application forms.
4.14. The respondent said that the only information available to the members of the Conference was the application form of each candidate. It submitted that the details of the ages of the candidates were not shown on these forms and no information was provided to the Conference on the ages of the candidates. It submitted that the participants at the Conference would not have been aware of the complainant's age, with the possible exception of Mr B, and it submitted that he did not mention the complainant's age to any of his colleagues at the Conference at any stage. In that respect, it submitted that the Conference members could not have treated, and did not treat, age as a factor in their considerations.
4.15. The respondent submitted details of the ages of the candidate and made a number of submissions with respect to the statistics provided in this context. In particular, it submitted that the oldest successful candidates included two aged 58 (the same age as the complainant), three aged 57 and three aged 56. It stated that two of the four candidates aged 58 had the required level in all five competencies while two of the candidates aged 58 did not and so were unsuccessful on that basis. With respect to the complainant's submissions about these statistics (see par. 3.6 above), the respondent stated that if you include those aged 56, then four of nine candidates were successful. It said that if there was age discrimination, one would expect all candidates aged 58 to be unsuccessful. It submitted that these facts illustrate that there was no discrimination on the age ground against the complainant, or any other candidate.
4.16. The respondent submitted that the example provided by the complainant in relation to "Leadership" did not demonstrate sufficiently that he had the required level of this competency for promotion to HEO and said that this was the sole reason why he was not successful in the competition. In that respect, it stated that the "Leadership" example provided by the complainant for the 2003 competition was different to that provided in 2007 and the decision-makers in that case were different to the decision makers in 2007 in any event. It also stated that if the complainant had provided in his application form information that was provided to the Tribunal in his submission to it, a different decision might have been made at the consistory in question.
4.17. The respondent did not dispute the complainant's submission that he previously applied for promotion in 2003. It pointed out that he was not successful in that competition and that he was 54 years of age at the time. It submitted that the fact that he was considered not suitable for promotion to HEO when he was four years younger supports its contention that there was no bias against the complainant on the ground of age. Nor did it dispute that the complainant was considered suitable for promotion to HEO in 2005 on a 'seniority subject to suitability' basis, adding that he was two years older that year than he was when he was considered unsuitable for promotion in 2003.
4.18. The respondent denied it had made a decision to "strike the complainant down" because he was close to retirement age. It said that the members of the Conference, whatever about knowing about the age of candidates, certainly did not know their retirement plans and the evidence of Mr A confirmed this.
4.19. It submitted, in relation to the complainant's PMDS ratings, that PMDS determined his eligibility for the competition but eligibility is not the same as suitability. In any event, it submitted that the complainant's reference to his 2007 PMDS rating had no bearing on the BMW Promotion Conference in May 2007.
4.20. The respondent denied the complainant's implication that Mr A and Mr B had been coached in what to say at the hearing.
4.21. In summary, the respondent said that the complainant had not established a prima facie case of discrimination. It said that he had stressed his belief that this consistory had applied an age discrimination approach, but, citing the Labour Court decision in Melbury -v- Valpeters, it said that mere speculations or assertions are not enough to establish a prima facie case. It said that the only facts established by the complainant was that two of four candidates aged 58 had not been successful but said that this was not sufficient to shift the burden of proof. The respondent said that if the Tribunal was satisfied that a prima facie case had been established, then there was no infringement on the age ground as it did not form part of the process of decision for the consistory.
4.22. The respondent said there was no issue with the complainant's competence as an EO and it regretted that he had taken the view that he was considered to be worthless and that this view was not shared by the respondent. It said that, in any event, the complainant, even if he had been put on the panel, would not have been promoted as no vacancies arose in the locations he had identified as being suitable.
4.23. At the Tribunal's request, the respondent provided further statistical information relating to the other competitions mentioned and more detailed information on the competition that is the subject of this complaint.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. In the first instance, it requires the complainant to establish facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that 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. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows - "as between any 2 persons, ... that they are of different ages." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age i.e. because he is of a different age to the comparator.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6(2)(f) of the Acts and contrary to section 8 of those Acts. In reaching my decision, I have taken into account all of the submissions, both oral and written, made to me in the course of my investigation, including all the evidence of the parties at the Hearing. The complainant's submissions with respect to this complaint related primarily to the consistory from which his application for inclusion on a panel for promotion was unsuccessful. He submits that this consistory acted in a discriminatory fashion, both in terms of the outcome it arrived at, and the procedure that it followed. I will now proceed to consider his submissions in that respect.
Consistory
5.4. In Client Logic t/a UCAL -v- Kulwant Gill the Labour Court stated that "..it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". Thus, it is a principle that has consistently been followed by both Equality Officers of this Tribunal and the Labour Court that it is not the Equality Officer's role to examine whether the most meritorious candidate was successful in a promotion process. Rather, the Equality Officer's role is to examine and decide whether or not the selection process is tainted by discrimination - in this case on the age ground.
5.5. The first question for me to consider, then, is whether, with respect to the complainant's application to the consistory in question, there was clear evidence of unfairness in the selection process or manifest irrationality in the result that might lead to a presumption that there was discrimination on the age ground. The principle evidence that the complainant relies upon in this respect is the fact that only two of the six candidates aged 57 or over were successful. However, the respondent points out that of the nine candidates aged 56 or over, seven were successful. It is clear that the statistics in this case can be interpreted in such a way as to support the arguments of both parties and so they do not provide any clear evidence that the age of individual candidates had a bearing on whether they were either more or less successful at this particular consistory.
5.6. I note that, contrary to some previous experience of this Tribunal and the Labour Court, the consistory in question in relation to this case has kept notes of its process and outcomes. I have considered this evidence and I do not see anything in it that would suggest that there was unfairness in the procedure that was carried out at the consistory such as would give rise to a presumption that there was discrimination on the ground of age.
5.7. The Tribunal has also heard the evidence of two witnesses who were present at the consistory in question. While I note that the complainant suggests that the evidence of these witnesses was "what you would expect them to say", (implying that this evidence was not honestly and truthfully given), I found them to be credible witnesses. In that context, I have no reason to doubt that their testimony was anything other than their honest recollection of what took place on the day in question. This testimony does not give rise to any question in my mind that there might have been unfairness in the process that was applied on the day in question.
5.8. I am also satisfied that the consistory members were not formally aware of the ages of the candidates. Undoubtedly the ages of some, if not all, of the candidates, were informally known to some or all of the members of the consistory. For example, I am satisfied that Mr. B at least knew the complainant's age, or at least his approximate age.
5.9. However, it is a rather large leap for the complainant to say that just because the consistory, or a member of the consistory, knew his age that the respondent discriminated against him on this basis. Certainly this fact cannot stand on its own as evidence of sufficient significance to shift the burden of proof to the respondent: the complainant must also show that the persons concerned used that knowledge with respect to their discussions at the consistory and/or that it influenced their decision not to accept his application for inclusion on the panel for promotion. There is no evidence that would support such a conclusion.
5.10. The complainant also points to a note of the consistory which states that he was "knocked on" in relation to the competency of "Leadership" and submits that the Tribunal should infer that this comment refers to his age. However, having examined the notes in question and heard the submissions and evidence of both parties in that respect, I am satisfied that this comment has no meaning other than to indicate that the complainant's application was being refused because the consistory was of the view that it did not meet the required standard in relation to the "Leadership" competency. In that context, it is consistent with the respondent's position that this was the sole reason for the complainant's failure to be included in a panel for promotion out of the consistory in question.
5.11. The complainant also submitted that the examples he provided in relation to the "Leadership" competency were suitable and had been considered to be so on at least one previous occasion and that it had never been suggested to him by the respondent that he did not have the "Leadership" skills necessary to carry out the functions of a HEO. He also submitted that he had been confirmed as being suitable for promotion in the context of the PMDS process. The complainant submitted that, consequently, the Tribunal must conclude that it was for some other reason that he was not successful, and that the only other reason could have been his age. On the other hand, the respondent submits that eligibility and suitability are different concepts and the PMDS only indicated he was eligible for promotion, not that he was suitable.
5.12. The remit of the consistory was to consider the applications of the candidates solely on the basis of the application forms and other information that was provided for that particular competition and that particular competition only. I am satisfied that this was the procedure it followed, and that it did so in the interests of fairness, openness and transparency. Therefore, to take into account factors or knowledge outside that presented in the applications provided would have been unfair and defeated the purpose of following this procedure.
5.13. In that context, the elaborations on the examples of the "Leadership" competency that the complainant provided in his submissions to the Tribunal and at the hearing are irrelevant, as are his PMDS ratings. The members of the consistory did not have that information, and even if they knew of it themselves from their own knowledge, it would have been contrary to the procedure that was applied to the consistory for them to consider it. Indeed, it would have been unfair on the other applicants for it to do so.
5.14. At the request of the Tribunal, the respondent also provided copies of the "Leadership" competency examples provided by the other candidates at the consistory, with material redacted where appropriate. Having considered these applications, and in light of all the other evidence presented by both parties and in all the circumstances of the present case, I do not consider there to be manifest irrationality in the conclusion of the consistory that the complainant's name was not put forward for inclusion on the panel for promotion because the examples of the "Leadership" competency which he provided to it did not meet the relevant standard requirements as judged by it. Nor am I satisfied that there is evidence of unfairness in the process with respect to the complainant's application to the consistory in question.
5.15. In that context, and consistent with the principles outlined in Kulwant Gill, it is not for me to make any further comment on the consistory's decision with respect to the complainant's application for inclusion on a panel for promotion. The complainant has failed to establish a prima facie case of discrimination on the age ground with respect to that application.
General considerations
5.16. The scope of the complainant's complaint was not entirely clear. He appeared to suggest that one reason for the failure of the consistory in question to put his name forward for the panel for promotion that it was implementing a general practice of the Revenue Commissioners not to promote older people who were close to retirement age. In the interests of completeness, and the avoidance of any doubt, let me state that the figures provided by the respondent in this respect do not give rise to any inference of discrimination, and no other evidence was presented to the Tribunal that would support such a claim.
Final Comments
5.17. It is clear that it was the use of the phrase "not suitable for promotion" that gave rise to the complainant forming the view that there was a change in approach of the respondent in the two years that had passed since his previous successful application for inclusion on a panel for promotion, and that this change was related to his age. (In this context, it is clear to me that if a different form of wording had been used by the respondent in the present case then this complaint would not have come before the Tribunal. It might be useful for the respondent to take note of this in the interests of avoiding further complaints should similar circumstances arise). However, it is clear that the complainant was incorrect in that respect and the Revenue Commissioners did not discriminate in this case.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the age ground pursuant to section 6(2)(f) of the Acts in terms of promotion/re-grading contrary to s.8(1)(d) of the Acts
6.3. Accordingly, the complainant's case fails.
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Gary O'Doherty
Equality Officer
7th June, 2011