The Equality Tribunal
Employment Equality Acts
Decision DEC-E2012-178
PARTIES
David F Matthews
- V -
Electricity Supply Board
(Represented by Francis Meehan B.L.,
instructed by Eve MacPartlin, Solicitor)
File reference: EE/2010/345
Date of issue: 18 December 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Victimisation - Age - Prima facie case - Mere assertion
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment and victimisation by the respondent on the grounds of age in terms of Sections 6(2) and 74 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 30 April 2010 under the Acts. On 13 July 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 3 October 2012. Additional submissions were received from the parties up to 17 November 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 During the course of the hearing, the concept of victimisation as defined in the Acts was explained to the complainant. Although the issue of victimisation was indicated on the original claim form, no written or oral evidence of victimisation taking place prior to the receipt of the complaint form on 30 April 2010 was set before the Tribunal.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he joined the respondent company in October 1968 and had completed 42 years of service at the time of making his submission. During that time the complainant held a number of positions and was appointed to his present position in 1996 at a 'G' grade.
2.2 The complainant submitted that around 1996 he applied for, and received an interview for the position of Production Support Manager, but was ultimately unsuccessful at that time. The complainant further submitted that when the position became available again about 5 to 6 years ago, he did not apply for it as he was quite happy doing the work he was then doing.
2.3 The complainant submitted that when the position became vacant in 2010 he applied through the normal procedure but was informed by his line manager that he was not getting an interview as he was not deemed qualified for the position. This caused him great embarrassment but he indicated to his manager that he was surprised because he had been interviewed for the position some 15 years prior to that.
2.4 The complainant submitted that the reason that he was not called to interview was due to his age (62) and it is on this basis that he is taking this complaint.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the complainant was employed in October 1968 and holds a grade G position in the company.
3.2 The respondent submitted that in or about April 2010 the complainant, along with several other employees, applied for the position of Production Support Manager which is a middle management position at Portfolio J grade. The advertisement for the position had set out the eligibility, role profile, key responsibilities and other general information. Candidates were asked to complete an application form giving a brief description of their experience under several specific competencies. Applicants were advised that short-listing would be based on a number of factors from the following list - the information provided on their application form, the line manager's assessment form, relevant experience and grade.
3.3 The respondent submitted that there were initially ten applicants for the position but one withdrew prior to short-listing. Of the remaining nine candidates four were at grade G or below, while five were at the grade H or upwards. The five applicants above grade H all had significant managerial and/or industrial relations experience and were short-listed. The four applicants at grade G or below were not shortlisted. The respondent further submitted that short-listing on the grounds of grade and experience is a common practice.
3.4 The respondent submitted that the complainant has had very little management experience and that such experience was crucial to this role. In addition, the short-listing panel did not have access to the ages of the candidates, 60% of the successful candidates were within five years of the successful candidate's age and ultimately the successful candidate was 57.
3.5 The complainant had requested that the panel reconsider their decision not to short-list him but the panel did not accede to that request.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 At the hearing, the complainant outlines how he had applies for a previous position to the advertised in 1996 and on that occasion was successful in being called for interview. On that basis he stated that he would have expected to be called for interview on this occasion. The complainant also stated that in the intervening period he had received rising performance scores and had been awarded an exceptional performance bonus.
4.5 The complainant stated that he had been denied an interview and that this denial had been communicated in an 'insensitive manner' whereby he was informed that he was 'not qualified enough'. The complainant stated that following his request to the panel to reconsider his application he was informed that "we decided that the cutoff would be a H because it is policy to interview a maximum of 6". The complainant stated that this was a reasonable argument but that the documents provided to him show that there was only one grade G and so it would have been possible to call him for interview within the policy.
4.6 The complainant stated that he was not called to interview due to grade and relevant experience but he maintains that this was down to his age. The complainant stated that the procedure was seriously flawed and that the short-listing could have, and should have, been extended.
4.7 The complainant further stated that he recalled a conversation with Mr Y, a member of the short-listing board some years previously. The conversation was about general matter such as sport but also discussed a vacancy that was advertised at that time. The complainant stated that Mr Y indicated that he wouldn't give a job to a fifty-nine year old as matters should be settled at that stage.
4.8 At the hearing, Ms X, a member of the short-listing board gave evidence that relevant experience and grade were the basis for the short-listing criteria. She stated that five of the applicants had very relevant experience, particularly relating to management roles, and it was decided to call these five candidates to interview.
4.9 Mr Y also gave evidence to the hearing indicating that he had a vague recollection of having a conversation with the complainant some years previously but that he had never once used age as a competency or for deselecting someone for a job. Furthermore he indicated that someone aged 58 was called to interview for the position now in question and that the successful applicant was 57.
4.10 Having regard to all the evidence presented to me, the only evidence of age discrimination brought before me related to a recollection of a conversation some years previously. The complainant's account of the conversation lacked detail and was directly challenged by the witness present. On balance, I cannot find conclusively one way or the other in relation to the alleged comments made and therefore cannot rely on this allegation to support the complaint of discrimination.
4.11 In the case of IBM Ireland Product Distribution Ltd and Michelle Svoboda (EDA1116) the Labour Court stated that it has "consistently found that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case and so transfer the burden of proof" and went on to cite its earlier decision in Melbury Developments Ltd v Valpeters (EDA 17/2009) where it stated that "mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". In the instant case the complainant has asserted that he was treated differently because of his age. Having considered the evidence presented to me in context, I consider that all the evidence that the complainant has proffered in relation to providing a nexus to the age ground falls into the category of 'mere assertion'.
4.12 Having considered the evidence presented to me I consider that the complainant has not established facts from which age discrimination may be inferred. Therefore no onus shifts to the respondent to rebut any inference and this complaint must fail
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has not been established, and therefore this complaint must fail.
Conor Stokes
Equality Officer
18 December 2012