The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
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Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-214
John Geraghty
(Represented by Mr. Declan J. Wade BL on the instructions of Doyle Geraghty and Company Solicitors)
and
The Revenue Commissioners
(Represented by Mr. Mark Connaughton SC on the instructions of Arthur Cox Solicitors)
File No. EE/2008/274
Date of Issue: 16 November 2011
File reference: EE/2008/274 - DEC-E2011-214
Keywords:
Employment Equality Acts - Discriminatory treatment - Promotion/re-grading- Age - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. John Geraghty (hereafter "the complainant") that he was subjected to discriminatory treatment in relation to promotion/re-grading by The Revenue Commissioners (hereafter "the respondent") on the grounds of his age. The complainant was unsuccessful in a competition for Upgrading of Solicitor to Solicitor (Higher Scale AP 1 equivalent) in December 2007. The complainant stated that the shortest qualified, least experienced and youngest candidate for the post was selected, notwithstanding the criteria set out in Circular E6108.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 1 May 2008 under the Employment Equality Acts. On 19 April 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 4 October 2011. A previous hearing scheduled for 2 September 2011 was adjourned in exceptional circumstances as the complainant was outside the jurisdiction.
2. Case for the complainant
2.1. The complainant is employed as a Solicitor in the Revenue Solicitors Division of the Office of the respondent since 7 January 2002. He had, at the material time, been working with the respondent for almost 6 years. He applied for a competition for promotion; attended an interview on 12 December; and received results of same on 14 December 2007. The complainant had not received information as requested in EE2.
2.2. The complainant came second in this competition and he submitted that in selecting the youngest, shortest qualified and least qualified candidate to the post, contrary to the provisions of Circular E6108, the respondent discriminated against the complainant and other candidates on the ground of age. The complainant contended that his overall result amounted to discrimination on grounds of age, in terms of section 6(2)(f) of the Acts and in contravention of section 8(1)(d) of the Acts. Furthermore, it was submitted that 'grade-jumping' is a breach of protocol.
2.3. The complainant pointed out that there appeared to be an additional procedural defect in the promotion process. The successful candidate, at the material time, held the rank of Higher Executive Officer or Administrative Officer while the requirement set out in the relevant Circular presupposes that a candidate holds the rank of Assistant Principal or equivalent
2.4. At the hearing the complainant stated that he was not aware of the union agreement that was presented at the hearing.
2.5. The complainant relied on the reasoning in Portroe Stevedores and Nevins, Murphy and Others (Determination EDA051) whereby the Labour Court commentated that an investigation into such matters must be "alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration must be approached with caution".
3. Case for the respondent
3.1. The respondent is the primary state body responsible for the assessment and collection of taxes and duties in the State. The respondent denies that it discriminated against the complainant on the ground of his age. The respondent does not treat any person less favourably on the basis of any of the nine discriminatory grounds under the Act, 1998.
3.2. The respondent maintains that the assignment to Solicitor Higher Scale was dealt with through a competitive interview process. The upgrading was awarded to the candidate who best demonstrated the qualities required. It was acknowledged that the complainant's suitability and ability for promotion were of a high standard however the successful candidate simply performed slightly better at interview. This was the reason why the complainant did not merit the highest score and had nothing to do with the complainant's age.
3.3. In relation to the alleged procedural defect. It is submitted that such an allegation is not a matter for this Tribunal as such an allegation, even if borne out by evidence, would not have affected the complainant's eligibility for the upgrade. In any case, it is submitted that the requirement as set out in the Circular were that "applicant's must, on 3rd December 2007, have been serving in Revenue in an established capacity of a Solicitor". All five applicants interviewed satisfied this requirement.
3.3. The respondent submitted Director of Public Prosecutions and Sheehan (Determination EDA0416), McCormick and Dublin Port Company (DEC-E2002-046) Department of Health and Children and Gillen (Determination EDA0412), Dublin Institute of Technology and a Worker (DEE994) and A Government Department and An Employee (Determination EDA062) as relevant authorities in this matter.
3.4. The respondent submitted that it provided as much information as possible to the complainant. In light of the small cumber of candidates, who all work together in the respondent's legal department, no further information could be provided anonymously.
3.5. The respondent concluded after the interview, and was entitled to conclude, that the successful applicant's experience and personal qualities made that candidate more suitable for the appointment that the complainant. The complainant, while suitable for the upgrade, simply did not demonstrate as effectively as the successful candidate on the day possession of the required qualities.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. It is well established law that in considering the question of whether or not a complainant has been discriminated against in respect of appointment or promotion to a particular post, it is not for this Tribunal to form any view on the merits of the complainant or his/her suitability for appointment, rather it is to determine whether or not the respondent's decision was tainted by unlawful discrimination on the ground advanced. Such an inference concerning age discrimination may arise from the appreciation of the full facts relating to the process and relate to, inter alia, marked statistical difference in success rates for different age groups in apparently similar circumstances, evidence of a policy that prefers a particular age group, lack of transparency or unexplained procedural unfairness, a mismatch between formal selection criteria and those actually applied, and evidence of discriminatory questions asked at an interview.
4.3. The language used in the Circular was an issue of concern. It was submitted that the emphasis was on considerable experience and a track record and that the successful candidate could not - simply by relying on the ordinary meaning of the word - have accrued such due to his young age. I note that the Circular refers to "an applicant must have been serving in Revenue in an established capacity as a Solicitor". Furthermore, the criteria for promotion as set out in the Circular are divided into two categories: a) efficiency and effectiveness criteria 200 points and b) personal criteria 200 points. These correspond to the three categories (personal criteria was divided into two sub-categories entitled 'Personal criteria in Service Delivery of Legal Support' 100 points and 'Commitment to High Standard' 100 points) used for scoring at the interview and it is clear that the two criteria carried equal marks. It ought to be noted that the selection criteria in the Circular points out that the interview will be based on the information provided by the candidates in his/her application.
4.4. I note that the age breakdown of the candidates in order of merit is a follows:
age 31 - Successful candidate
age 58 - Complainant
age 41
age 52
age 38
No inference of age discrimination can be drawn from such a small sample. The most successful candidate was the youngest and the least successful, the second youngest, the least successful. The breakdown of the marks shows that the complainant scored the highest points in category "Efficiency and Effectiveness Criteria" 160 out of 200, while the successful candidate scores 140 out of 200. Overall the successful candidate scored 320 out of 400 marks (in three criteria) and the successful candidate scored 315 out of 400 marks. This is a difference of 1.25%.
4.5. As the Labour Court has acknowledged in the Gillen and Portroe Stevedores determinations, a case of age discrimination presents particular difficulties in relation to evidence and proof. The fact that a person - who was significantly younger that the complainant - was selected is not in itself sufficient to establish an inference of age discrimination. While I accept the reasoning in Portroe Stevedores in relation to the possibility of unconscious or inadvertent discrimination I am satisfied that the respondent's denials of a discriminatory motive are corroborated by a transparent process. It is clear that the promotion competition set out in Circular E6108 is a merit based one. It requires a person to have been established as a Solicitor on a specific date. Therefore, it is not like many other such competitions whereby a person, in order to qualify, must have reached a certain point on the salary scale. Indeed, having viewed the length of service of each of the candidates, I note that none of the candidates would have qualified for such an increment/upgrade. I am entirely satisfied that the provisions of the above Circular have been adhered to.
4.6. I find that this was a merit-based competition for promotion. Such an approach will always contain some element of discretion on behalf of the interview board/selection committee. Having heard the full facts of this case I have found no evidence to support an inference that the process undertaken by the respondent was tainted by age discrimination.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has failed to establish a prima facie case of discrimination on the age ground.
_____________
Tara Coogan
Equality Officer
16 November 2011