DEC-E2011-133-Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision - DEC-E2011-133

PARTIES

Dr. A
(represented by The Irish Medical Organisation)

and

The Health Service Executive

File Reference: EE/2008/001
Date of Issue: 30th June, 2011

Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - age - access to employment - training - jurisdictional issue - time limits - correct respondent - failure to raise a prima facie case of discrimination

1. Dispute
1.1 This case concerns a complaint by Dr. A that he was discriminated against by the Health Service Executive on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts, 1998 to 2008 in terms of the its decision to refuse his applications for inclusion on nine separate post graduate rotational training schemes in psychiatry over a two year period between 2006 and 2007.

2. Background
2.1 Dr. A referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 3rd January, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on 13th July, 2010 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 31st October, 2008 and from the respondent on 23rd September, 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 14th December, 2010 and 26th January, 2011. The final correspondence between the Equality Officer and the parties concluded on 9th February, 2011.

3. Summary of the Complainant's case
3.1 The complainant is a Registered General Medical Practitioner and Specialist General Practitioner on the Register of Specialists as operated by the Irish Medical Council. The complainant is employed by the respondent in a permanent capacity as an Area Medical Officer and is currently on a career break. The complainant applied to the respondent for inclusion on a total of nine separate postgraduate rotational training schemes in psychiatry over a two year period between 2006 and 2007 (details listed below). The complainant states that he was unsuccessful in relation to his applications for inclusion on each of these training schemes.

List of Training Schemes in Psychiatry
- Dublin University Psychiatric Hospital Training programme (St. Patrick's Hospital) - January, 2007 intake
- Midland Health Board Psychiatric Training Scheme (St. Loman's Hospital Mullingar) - January, 2007 intake
- Western Postgraduate Training Scheme in Psychiatry - January, 2007 intake
- Midland Health Board Psychiatric Training Scheme (St. Fintan's Hospital Portlaoise) - July, 2007 intake
- Western Postgraduate Training Scheme in Psychiatry - July, 2007 intake
- Mid-Western Psychiatric Scheme - January, 2008 intake
- Midland Health Board Psychiatric Training Scheme (St. Loman's Hospital Mullingar) - January, 2008 intake
- Sligo Mental Health Service Training Scheme - January, 2008 intake
- Western Postgraduate Training Scheme in Psychiatry - January, 2008 intake

3.2 The complainant claims that he satisfied all of the relevant selection criteria for inclusion on these training schemes and that the only reason why he was not selected by the respondent was on account of his age (he was aged 58 years at the date of the referral of the present complaint). The complainant submitted that there is a significant inference of age discrimination in this case based mainly on the following factors: there is a marked statistical difference in success rates for different age groups; the lack of transparency and use of such selection criteria as 'trainability'; the mismatch between the formal selection criteria and those apparently applied in practice. The complainant claims that he has been subjected to discrimination by the respondent on the grounds of his age as a result of its refusal to select him for inclusion on any of these training schemes.

Exemption provided for in Section 34(5) of the Acts
3.3 The complainant submitted that section 34(5) of the Acts refers to a "maximum age for recruitment" and states that it shall not constitute discrimination for a maximum age to be set where it takes account of the period of time involved in training a recruit to a standard at which the recruit will be effective in that job. The complainant submitted that section 34(5) of the Acts does not apply in this case as at no point was there mention of a maximum age being set for this post. No such ceiling was included in the job advertisement nor was same mentioned by any of the interviewers when questioned. Furthermore, the complainant submitted that he was not asked his age at interview nor was the significance of his age explained to him.

4. Summary of the Respondent's case
4.1 The respondent submitted that under the Health Act, 2004, its role is to facilitate the postgraduate medical education and training of non-consultant hospital doctors (NCHDs). Prior to 2009, the Irish Psychiatric Training Committee (IPTC) was responsible for the provision of postgraduate medical education and training in psychiatry and therefore for the selection of NCHDs to participate in the specialist training programmes which are subject of the present complaint. The postgraduate medical education and training pathway in psychiatry in Ireland is delivered in two distinct stages - the first stage is referred to as Basic Specialist Training (BST) and the second stage is referred to as Higher Specialist Training (HST). The BST programme in psychiatry in Ireland is delivered via 12 distinct Rotational Training Schemes. The term rotational means that the successful applicants to the schemes rotate from one approved training post to another over a three to four year period in order to gain a broad range of experience in the different sub-specialities within psychiatry.

4.2 The respondent submitted that the recruitment and selection of BST trainees in psychiatry is managed directly by each of the 12 BST schemes at local level. Specialist trainees are recruited into the 12 psychiatric BST schemes twice a year - namely, a January intake and a July intake. Successful applicants to the schemes are employed in designated NCHD posts within the scheme for the duration of the BST programme. Following their enrolment on the BST programme in psychiatry via successful application to and selection by one of the 12 BST psychiatry schemes, the specialist trainee NCHD is expected to participate successfully in all elements of the BST. A key element of the programme is the passing of the Membership of the Royal College of Psychiatrists (MRCPsych) UK examination. The delivery of the MRCPsych examination is managed via two parts, Part I and Part II. Part I may be taken after a doctor has completed 12 months and Part II may be taken after a doctor has completed 30 months training. It is not a mandatory requirement of the UK College for a doctor to be on an approved training scheme in order to qualify to sit for these exams.

4.3 The respondent stated that the complainant applied for inclusion on a total of nine rotational schemes in psychiatry over a two year period between 2006 and 2007 (details of which are outlined at para. 3.1 above). The respondent accepts that the complainant was not successful in relation to his application for inclusion on any of these training schemes. The respondent denies that the complainant was subjected to discrimination in relation to access to these training schemes and it submitted that the selection criteria devised by the interview boards for each competition were objective and based on the requirement to select candidates who demonstrated training potential to eventually qualify as consultant psychiatrists. As there were large numbers of applications for a small number of posts, the interview board in some cases short-listed candidates for interview. The respondent submitted that while the complainant was eligible for employment in a "service post" within psychiatry, this did not automatically mean that he was a suitable candidate for participation on the basic specialist training schemes in psychiatry. The respondent accepts that the complainant had several years' experience working in various posts in psychiatry; however, it submitted that his lengthy experience in psychiatry without evidence of obtaining the MRCPsych examination or any parts thereof indicated a lack of professional progression and therefore, he was not deemed suitable as a trainee on the basic specialist training programme in psychiatry.

Exemption provided for in Section 34(5) of the Acts
4.4 The respondent submitted that the objective of specialist medical training is to produce doctors who are eligible for registration on the Specialist Division of the Register of Medical Practitioners maintained by the Medical Council of Ireland which allows them to apply for consultant posts within the public health service. In order to successfully complete the training in psychiatry, trainees on one of the 12 psychiatric schemes are required to obtain Membership of the Royal College of Psychiatrists (UK). Once a doctor has successfully completed the BST, s/he is then eligible to apply for the second stage of specialist training i.e. higher specialist training (HST). Successful applicants are required to spend a minimum of 3 years in the HST programme. During this training period they are employed as Senior Registrars in the health service. The principal aim of higher training is to provide a doctor, who has completed the Basic Specialist Training and obtained MRCPsych qualification, with an educational programme, which will prepare them for independent practice of psychiatry as a consultant. The overall time period spent by a non-consultant hospital doctor in completing the BST and HST will range from 7 to 8 years.

4.5 The respondent submitted (without prejudice to its argument that age was not a factor in the non selection of the complainant), that it would not be discriminatory in accordance with the provisions of section 34(5) of the Acts to take account of the age of applicants for the psychiatric training schemes in light of the number of years of training which a doctor is required to undergo before being eligible for appointment as a consultant and the significant cost involved in the provision of such training. The respondent submitted it should be noted that the complainant was approx. 58 years old when he applied for the first competition and he is subject to a compulsory retirement age of 65 years.

5. Respondent's case in relation to issues of jurisdiction
5.1 The respondent raised a number of issues, both in its written submission and at the hearing of the complaint, regarding the jurisdiction of the Tribunal to investigate the complaint which can be summarised as follows:

Issue regarding the appropriate respondent
- The respondent submitted that the present complaint relates to access to a number of postgraduate training schemes in psychiatry which, at the time, were operated under the auspices of the Irish Psychiatric Training Committee. It submitted that the Irish Psychiatric Training Committee was responsible for the selection of non-consultant hospital doctors (NCHDs) to the training schemes. The role of the respondent in relation to the competitions which are the subject of the present complaint was to facilitate this training in accordance with its statutory obligations under the Health Act, 2004 . The respondent therefore contends that it is not the appropriate respondent in relation to any of the nine competitions which are the subject of the present complaint as the training programmes were operated under the auspices of the Irish Psychiatric Training Committee. The respondent contends that it had no role in the administration or accreditation of the schemes and was not the decision maker for the selection of trainees for these training programmes.
- The respondent contends that there is an additional jurisdictional issue in relation to the Dublin University Psychiatric Rotational Training Programme. The respondent contends that as it did not have a role in administering the programme nor in the recruitment process it cannot be deemed the appropriate respondent for this competition.

Issue regarding Time Limits
- The respondent submitted that the complainant has failed to comply with the time limits provided for in section 77(5) of the Acts in relation to the following five competitions as the alleged discriminatory acts occurred more than six months prior to the referral of the present complaint, namely:
- Dublin University Psychiatric Training Scheme - January 2007 intake
- Midland Health Board Psychiatric Training Scheme - January 2007 and July 2007 intake
- Western Postgraduate Scheme in Psychiatry - January 2007 and July 2007 intake
The respondent also contends that the time limit for the referral of the complaints in relation to these competitions should not be extended to twelve months as the complainant has not demonstrated that there was reasonable cause for his failure to comply with the six month time limit in accordance with the provisions of section 77(5)(b).
- The respondent also disputes the complainant's contention that the refusal of admission to the 9 competitions constitutes a continuing act of discrimination within the meaning of section 77(6A) of the Acts. The respondent submitted that all 9 competitions were run independently and separately and the outcome of any competition does not have any relevance to the outcome of any subsequent competitions to which candidates apply. The respondent therefore rejects the complainant's claim that the outcome of these competitions represents a continuing act of discrimination.

Complainant's case in relation to issues of jurisdiction

Issue regarding the appropriate respondent
- The complainant disputes the respondent's contention that it is not the appropriate respondent in relation to any of the nine training programmes in respect of which he sought admission. The complainant accepts that the Irish Psychiatric Training Committee is the statutory body responsible for the regulation of psychiatric training in Ireland; however, he submitted that the respondent is responsible for the funding of these schemes, the respondent's employees sit on the interview panels and the successful candidates are issued with the nationally agreed 'Contract of Employment for Non-Consultant Hospital Doctors'. The complainant submitted that the respondent has a duty to ensure that the persons carrying out the interviews do so in a fair and non-discriminatory manner and that the selection criteria used is transparent and objective.
- The complainant also disputes the respondent's contention that it is not the appropriate respondent in relation to the competition for the Dublin University Psychiatric Hospital Training programme (St. Patrick's Hospital). The complainant submitted (in addition to the arguments advanced in the previous paragraph) that the salaries of those employed pursuant to this training scheme are fully paid for by the respondent and the successful candidates ultimately train and work in hospitals that are under the control of the respondent.

Issue regarding Time Limits
- The complainant disputes the respondent's contention that he has failed to comply with the time limits provided for in section 77(5) of the Employment Equality Acts in relation to the following five competitions, namely:
- Dublin University Psychiatric Training Scheme - January 2007 intake
- Midland Health Board Psychiatric Training Scheme - January 2007 and July 2007 intake
- Western Postgraduate Scheme in Psychiatry - January 2007 and July 2007 intake

The complainant submitted that the respondent's refusal to accept his application for inclusion on any of the nine training schemes amounts to an act of continuous discrimination within the meaning of section 77(6A) of the Acts. The complainant submitted that the date of first occurrence of the discriminatory act in the present case was 1st November, 2006 i.e. the date upon which he was informed by the respondent that his application had been unsuccessful in relation to the first of the nine competitions in respect of which he had sought admission. The complainant submitted that this continuous act of discrimination culminated when he was notified by the respondent on 21st November, 2007 of the refusal in relation to the ninth competition in respect of which he had sought admission. The complainant submitted that that date (i.e. 21st November, 2007) was the date of the most recent occurrence of discrimination. The complainant stated that the present complaint was referred to the Tribunal on 3rd January, 2008 and he submitted therefore that the complaint has in fact been referred to the Tribunal within the time limits provided for in section 77(5) of the Acts.

Conclusions of the Equality Officer in relation to the issues of jurisdiction

Issue regarding the appropriate respondent
5.2 The respondent has submitted that it is not the correct respondent in relation to the alleged discriminatory treatment in the present case. It has submitted that the training schemes in respect of which the complainant sought admission were operated under the auspices of the Irish Psychiatric Training Committee (IPTC) and that this body was responsible for the organization of the competitions and the selection process which was carried out in relation to these competitions. The respondent contends that it had no role in the administration or accreditation of the schemes and was not the decision maker for the selection of trainees for these training programmes. The respondent submitted therefore that the IPTC is the correct respondent for the purposes of the present proceedings under the Employment Equality Acts.

5.3 Section 2 of the Employment Equality Acts, 1998 to 2008 defines an "employee" as follows: -
".... a person who has entered into or works under (or where the employment has ceased, entered into or worked under) a contract of employment .... ".
The same section defines "employer" as follows: -
"... in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employment has ceased, entered into or worked under) a contract of employment".
The same section also defines "contract of employment" as follows: -
"(a) a contract of service or apprenticeship, or
(b) any other contract whereby -
(i) an individual agrees with another person personally to execute any work or service for that person ... ".
There is further reference to the definition of "contract of employment" at section 2(3)(d) of the Acts where it provides as follows:
"(d) in the case of a contract mentioned in paragraph (b)(i) of the
definition of contract of employment -
(i) references in this Act to an employee shall be construed as references to the party to the contract who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom the contract is executed"

The provisions regarding discrimination by an employer in relation to access to employment are contained in section 8(5) of the Employment Equality Acts which provides that:
"(8)(5) an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee -
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered".

5.4 The definition of "employee" under the Acts therefore covers persons employed on both a contract of service and a contract for services. The question of whether or not a particular employment is to be regarded as a contract of service or a contract for services has been the subject of a number of decisions by the Courts in this jurisdiction including the cases Denny -v- Minister for Social Welfare and Tierney -v- An Post . In these cases the question for determination was whether a person was engaged as an employee or was self-employed on a contract for service. It is clear from the judgments in such cases that the factors which are taken into consideration in order to determine whether or not a person can be regarded as an employee include issues such as the element of control involved in the working relationship, who paid the employees' wages, the nature of the contract that existed between the parties etc.

5.5 In considering this issue, I am of the view that it is necessary to consider the nature of the training schemes at issue in the present case, the manner in which these training schemes were operated and the relationship that exists between the respondent and the successful applicants who were selected for inclusion on these training schemes. There are twelve rotational schemes in psychiatry in the Republic of Ireland and trainees are recruited to the schemes on a six monthly basis and are employed in designated Non Consultant Hospital Doctor posts for the duration of the training scheme. The schemes operate on a rotational basis which allows the NCHD's participating on the schemes to rotate through different sub-specialties in psychiatry over a three to four year period. The training is provided to the participants in various hospitals throughout the country that are under the control and direct supervision of the respondent.

5.6 I note that the IPTC was the statutory body with responsibility for regulating psychiatric training in Ireland (on 1st January, 2009 a new College of Psychiatry with statutory responsibility to regulate psychiatric training in Ireland came into being) at the time that the complainant sought admission to the training schemes. However, based on the evidence adduced, I am satisfied that the respondent is responsible for the funding of these training schemes, its employees were represented on the interview panels and the successful candidates were issued with the nationally agreed "Contract of Employment for Non-Consultant Hospital Doctors". It is clear from the standard contract of employment that was issued to the participants who undertook these training schemes that they were engaged in a contract of employment with the respondent for the duration of the training scheme and that they are also paid by the respondent for the duration of the training schemes.

5.7 Having regard to the foregoing, I am satisfied that the respondent is, in fact, the correct employer within the meaning of section 2 of the Acts for the purpose of considering the alleged discrimination contrary to section 8(5) of the Acts in terms of the complainant's application for inclusion on the psychiatric training schemes in the present case. Accordingly, I find that I do have jurisdiction under the Employment Equality Acts to investigate the present complaint against the respondent.

Issue in relation to time limits
5.8 The respondent has submitted that the complainant has failed to comply with the time limits provided for in section 77(5) of the Acts in relation to the first five competitions (i.e. the initial five out of a total of nine competitions) as set out on the table below and it claims that the alleged discriminatory acts occurred more than six months prior to the referral of the present complaint. The respondent notes that the present complaint was referred to the Tribunal on 3rd January, 2008 and it submitted that the alleged discrimination in relation to each of these five competitions occurred more than six months prior to this date. The respondent submits that the time limit in relation to any of these five competitions should not be extended to twelve months in accordance with the provisions of section 77(5) of the Acts as the complainant has failed to demonstrate that there was "reasonable cause" for the failure to refer the complaints in relation to these five competitions within the required time limits. The respondent further submitted that the nine competitions which are the subject of the present case should not be considered as a continuing act of discrimination in accordance with the provisions of section 77(6A) of the Acts. It submitted that all nine competitions were run independently and separately and that the outcome of any individual competition did not have any relevance to the outcome of any subsequent competition.

5.9 The complainant has argued, firstly, that the respondent's refusal to afford him access to each of the nine training schemes amounts to an act of ongoing discrimination within the meaning of section 77 of the Acts. He has claimed that this discrimination commenced when he was informed that he had been unsuccessful in relation to the first of the training schemes in respect of which he had sought admission (i.e. Dublin University Psychiatric Hospital Training Programme - January, 2007 intake) and culminated upon the date that he was informed his application was unsuccessful in relation to the last of these training schemes (i.e. the Western Postgraduate Training Scheme - January, 2008 intake). The complainant argues that the Tribunal therefore does have jurisdiction to consider the alleged discrimination in relation to each of the nine competitions.

5.10 In considering this issue it is necessary to establish the date of the alleged act of discrimination in relation to each of the nine training schemes which are the subject of this jurisdictional issue (as set out on the table below). In this regard, I have taken note of the case of Decision DIR-E2002-004 the Equality Officer held "I am satisfied that, in relation to access to employment (including promotion within employment) the date on which discrimination takes place is the date on which the employer decides to treat one candidate less favourably than another on a discriminatory ground. This is generally the date on which an interview board makes its decision". Having regard to the foregoing, I have set out in the table below the respective dates upon which the alleged discriminatory act occurred in relation to each of the nine competitions which are the subject of the present complaint i.e. the date upon which the decision was taken to refuse the complainant's application in each case.

5.11 Section 77(5) of the Acts provides as follows: "(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".

Section 77(6A) of the Acts provides as follows:

"For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
period"

The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the discrimination in issue is part of a continuum of events. Therefore, the first issue that I must decide is whether or not the respondent's refusal to accept the complainant's application for inclusion on each of the nine competitions constitutes an act of ongoing discrimination within the meaning of section 77 of the Acts.

5.12 I have examined the circumstances surrounding each of the nine competitions in the present case and I have taken into consideration the following factors in deliberating upon this issue, namely:

- The training schemes in psychiatry (in respect of which the complainant sought admission in the present case) are delivered via 12 distinct Rotational Training Schemes. The recruitment and selection for each of these training schemes is managed and organised directly by each of the 12 schemes at local level (i.e. on a regional basis throughout the state);
- The competitions for each of the nine training schemes which the complainant sought admission are conducted totally separately and independently from each other;
- There was a separate competition and selection process carried out in relation to each of the nine competitions;
- The selection process was carried out by a different interview board/selection panel in each of the nine training schemes;
- Candidates for the training schemes were required to complete a separate application form for each of the competitions in respect of which an application was made;
- The performance of a candidate in one competition did not have any bearing or influence on his/her performance in subsequent competitions;

5.13 In considering this issue, I have taken note of the The Labour Court determination in the case of County Louth VEC -v- Don Johnson where it was held that "In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act". I have also taken into consideration the findings of the Equality Officers in the cases of Dermot Roche -v- The Office of Public Works and Walsh Toolan -v- The Board Of Management Colaiste Bride Secondary School which dealt with the issue regarding whether or not ongoing acts of alleged discrimination complied with the provisions of section 77 of the Acts. In both of these cases the Equality Officers decided that the separate acts of alleged discrimination did not constitute ongoing discrimination within the meaning of section 77 of the Acts. Having regard to the factors outlined in para. 5.12 above, I am satisfied that each of the nine competitions in respect of which the complainant sought admission were totally separate from each other and that they each constituted a competition which was stand alone in nature. I do not accept that the alleged discrimination in relation to each of the nine competitions can be considered as separate manifestations of the same disposition to discriminate. I therefore find that the alleged discrimination in relation to the nine competitions does not constitute an ongoing act or a continuum of discrimination within the meaning of section 77 of the Acts. Accordingly, I find that the claims in relation to the first five competitions (as detailed in the table above) have not been referred to the Tribunal within the six month time limits provided for in section 77(5)(a) of the Acts.

5.14 This period can be extended to twelve months in accordance with the provisions of section 77(5)(b) in circumstances where the complainant can demonstrate that there was "reasonable cause" which prevented him from referring the complaint within the prescribed time limits. The present complaint was referred to the Tribunal on 3 January, 2008 and therefore the last date upon which a complaint could be validly referred to the Tribunal was 4 January, 2007 (subject to the complainant being able to successfully show that his failure to refer the complaint within six months was attributable to reasonable cause). The alleged acts of discrimination in relation to the first three competitions (i.e. the Dublin University Psychiatric Training Scheme - January, 2007 intake, the Midland Health Board Psychiatric Training Scheme (St. Loman's Hospital Mullingar) - January, 2007 intake and Western Postgraduate Scheme in Psychiatry - January, 2007 intake) occurred more than twelve months before the date of referral of the present complaint. Therefore, the complainant cannot seek to avail of the extension of time that is available in section 77(5)(b) of the Acts.

5.15 The claims in relation to the fourth and fifth competitions (i.e. the Midland Health Board Psychiatric Training Scheme (St. Fintan's Hospital, Portlaoise - July, 2007 intake and the Western Postgraduate Training Scheme in Psychiatry - July, 2007 intake) were referred to the Tribunal within twelve months of the alleged acts of discrimination.

5.16 In Cementation Skanska v Tom Carroll the Labour Court addressed the issue of "reasonable cause" in terms of the Organisation of Working Time Act, 1997. However, the rationale adopted by the Court in that case is applicable to the instant case. The Court stated that in considering if reasonable cause exists -

"it is for the complainant to show that there are reasons which explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon ..... and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present, s/he would have initiated the claim in time. The length of delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.....".

This test requires the complainant to provide reasons which both explain the delay and offer an excuse for the delay. However, the test must be applied to the circumstances which prevailed and the facts known to the complainant at the relevant time. In the present case, I am not satisfied that the complainant has shown "reasonable cause" in respect of the delay in referring the claims of discrimination in relation to these two competitions. Accordingly, I find that the time for the referral of those complaints should not be extended in accordance with section 77(5)(b) of the Acts. Having regard to the foregoing, I am satisfied that I only have jurisdiction under the Acts to investigate the substantive claims of discrimination in relation to the latter four competitions that are listed on the table above.

6. Conclusions of the Equality Officer in relation to the substantive allegations of discriminatory treatment

6.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, 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 the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, 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.

6.2 Section 6(1) of the Employment Equality Acts, 1998-2007 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(s).

6.3 The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of his age, in terms of section 6(2)(f) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards its refusal to afford him access to four separate rotational training schemes in psychiatry.

6.4 The main thrust of the complainant's argument in support of the alleged discrimination in this case was that his qualifications and experience were not afforded due weight and/or consideration by the selection panels/interview boards when assessing his suitability for access to the training posts in psychiatry. The complainant claims that the selection procedures were applied to him in an unfair manner and he maintains that the reason why he was not selected for any of the training schemes in psychiatry was attributable to his age.

6.5 In considering the alleged discrimination in this case, I am obliged to examine the manner in which the selection processes in relation to these competitions was conducted by the respondent in order to establish if there is any evidence to suggest that these processes were applied in a less favourable or discriminatory manner towards the complainant on the grounds of his age. In this regard, I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, 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 selection process. Rather, the Equality Officer's role is to examine and decide whether or not the selection process is tainted by discrimination i.e. in this case on the age ground.

6.6 Having regard to the evidence adduced, I have taken note of the following factors in relation to the manner in which the selection process was conducted in each of these competitions.

Mid-Western Psychiatric Scheme - January, 2008 intake
- There were a total of 6 vacancies on this scheme with 3 of the posts being filled by placement from the GP Training Programme and 3 posts being filled from the panel established from the competition process (which is the subject of the present claim)
- The respondent received 118 applications for the competition and a short-listing process was conducted by the interview board which consisted of two Consultant Psychiatrists (Dr. C and Dr. L) and an Area Administrator from the Regional Mental Health Services.
- There were 22 candidates out of the 118 applications short-listed for interview.
- The respondent adduced evidence from Dr. C, Consultant Psychologist, at the oral hearing and he stated the reason that the complainant was not short-listed for interview in relation to this competition was because he did not meet the eligibility criteria. Dr. C gave evidence that the complainant's application form did not demonstrate that he had the required motivation and/or trainability in comparison to the successful candidates that was deemed necessary for participation on the training scheme.

Midland Health Board Psychiatric Training Scheme (St Loman's Hospital Mullingar) - January, 2008 intake
- There were a total of 3 positions to be filled on this training scheme and the respondent received a total of 150 applications for the scheme.
- The applications were subjected to a two stage short-listing process. The applications were initially assessed on the basis of the information provided on their CV, relevant career progression and their relevant experience. A total of 64 candidates (including the complainant) were selected on the basis of this initial assessment. A more detailed review of those applications was subsequently carried out which resulted in the short-listing of 38 candidates for interview. The complainant was not selected for interview following the second stage of the short-listing process.
- The short-listing process was carried out by two members of the interview board, namely Dr. M, Consultant Psychiatrist and Dr. S, Consultant Psychiatrist. Dr. M gave evidence that the complainant's application was assessed in accordance with the same criteria as all other candidates. He stated the reason that the complainant was not selected for interview was based purely on the fact that he did not perform as strongly as the candidates who were selected having regard to the assessment criteria.

Sligo Mental Health Service Training Scheme - January, 2008 intake
- There were a total of 3 positions to be filled on this training scheme and the respondent received a total of 69 applications for the scheme.
- The interview board carried out a short-listing process and the criteria used were as follows: experience in psychiatry; evidence of success in post graduate examinations/academic distinctions; evidence of potential in psychiatry (e.g. research, special interest); career achievements to date.
- The candidates were assessed on the experience they outlined in their application forms under the headings listed above. There were three bands, namely Band 1 - limited experience; Band 2 - reasonable/good experience; Band 3 - significant and effective experience. Only candidates from Band 2 and Band 3 were short-listed and called to interview.
- There were 26 candidates (of the 69 applications) short-listed for interview following the initial assessment of applications.
- The complainant was assessed in Band 1 (limited experience) and therefore was not invited for interview.
- Dr. O, Consultant Psychiatrist, and who was a member of the /short-listing panel/interview board, gave evidence at the oral hearing regarding the reasons why the complainant was not short-listed for interview. The reasons put forward included that his application form was badly presented, no clear evidence that he was a candidate with an interest in pursuing a career in psychiatry, he didn't demonstrate the required motivation that was deemed necessary for participation in the training scheme, no publications throughout his career, no evidence that he had attempted to sit Part 1 of the MRCPych exam.

Western Postgraduate Training Scheme in Psychiatry - January, 2008 intake
- There were 7 vacancies on this training scheme and the respondent received a total of 138 applications.
- There was a short-listing process carried out by the Western Postgraduate Psychiatric Training Committee and the criteria used for this process were as follows: a) candidates whose experience and qualifications indicate that they may be suitable for training, or b) candidates who were currently working within the Western Region in psychiatry posts. The complainant satisfied criterion b) and was therefore short-listed for interview. There were a total of 23 candidates short-listed for interview.
- The criteria used by the interview board and the marking system to assess the candidates called for interview were as follows (the marks awarded to the complainant out of the total marks available are listed in bold below):

Section A
i) Communications and interpersonal skills (35/100 marks)
ii) Clinical medical and diagnostic skills (70/100 marks)
iii) Capability to fulfil the functions of the post (35/100 marks)

Section B
Continuing professional development (15/25 marks)

- To qualify for appointment candidates were required to achieve a minimum pass mark of 40 under each of the criteria listed in Section A. The complainant received less than the minimum required pass mark in two of the three categories (i.e. 'Communications and interpersonal skills' and 'Capability to fulfil the functions of the post') and therefore was not deemed to have met the eligibility criteria to be offered a place on the scheme. The respondent confirmed that 9 of the 23 candidates called for interview were successful and placed on a panel.

6.7 Having regard to the evidence adduced, I am satisfied that the selection panels/interview boards that conducted the selection processes in each of these four competitions was properly constituted and that they conducted their business in accordance with accepted good practice. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that there was any element of unfairness or irregularity in terms of the manner in which the selection criteria was applied to the complainant's application during the short-listing processes and/or the interview process that was conducted in relation to any of these competitions. In this regard, I have found the evidence of the individual members of the respective selection panels (i.e. Dr. C, Dr. M and Dr. O) to be very credible regarding the manner in which the selection processes for the respective competitions were conducted. I accept their evidence that the complainant's age was not a factor which was taken into consideration when assessing his application for inclusion on these training schemes.

6.8 In the case of Galway City Partnership -v- Josephine O'Halloran the Labour Court held that "On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. The Court has previously held that where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board ..... On the evidence before it the Court can find nothing to indicate any element of irregularity or unfairness in the selection process as it was applied to the complainant ". Having regard to the evidence adduced, the complainant has not established that there was any manifest irrationality or unfairness in terms of the manner in which his applications were assessed by the selection panels/interview boards in comparison to the successful candidates. In considering this issue, I have noted that there were a large number of applications for a small number of posts in each of these competitions. I fully accept the respondent's evidence that the reason the complainant was not successful in these competitions was because of the fact that the selection panels/interview boards came to the conclusion that he was not a suitable candidate for the training posts based on his experience and qualifications. I have not been presented with any evidence from which I could reasonably conclude that the manner in which his applications for inclusion on any of these training schemes was in any way influenced by virtue of his age.

6.9 Having regard to the totality of the evidence adduced, I find that the complainant has failed to raise a prima facie case of discrimination on the grounds of age in terms of the manner in which his application for inclusion on the training schemes in psychiatry were assessed by the respondent.

Exemption provided for in Section 34(5) of the Acts
6.10 The respondent submitted that the alleged discrimination in this case is covered by the saving provisions in relation to age as provided for in section 34(5) of the Acts. However, given that I have already found that the complainant was not subjected to discrimination on the grounds of his age in relation to his application for inclusion on these training schemes, I am therefore not obliged to consider the relevance or otherwise of the provisions of section 34(5) in relation to this case.

7. Decision

7.1 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. I find that the respondent did not discriminate against the complainant on the age ground pursuant to section 6(2)(f) of the Acts and contrary to section 8 of the Acts. Accordingly, I find in favour of the respondent.

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Enda Murphy
Equality Officer
30th June, 2011