DEC-E2013-081- Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2012

Decision - DEC-E2013-081

PARTIES

Donal Coughlan
(Represented by Coakley Moloney Solicitors)
v
Cumann Luathchleas Gael Chorcai (Coiste Chontae Chorcai)

File Reference: EE/2009/917
Date of Issue: 25 July 2013

Headnotes: Age discrimination -- Direct and indirect discrimination -- Access to employment -- short-listing procedure -- Employment Equality Act 1998 s 6 (2) (f) and s 8 (1) (a)

1. Dispute

This dispute involves a claim by Mr Donal Coughlan (hereinafter "the complainant") that he was discriminated against by Cumann Luathchleas Gael Chorcai (Coiste Chontae Chorcai) (hereinafter "the respondent") on grounds of age within the meaning of sections 6 (2) (f) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to access to employment contrary to section 8 (1) (a) of the Acts when he was not shortlisted for interview for a Coaching and Games Development position.

2. Background

The complainant referred a complaint under the Acts to the Director of the Equality Tribunal received on 11 December 2009. A written submission was received from the complainant on 19 August 2010. A written submission was received from the respondent on 30 September 2010. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 18 September 2012. Subsequent to the hearing I requested the respondent to furnish certain documents to the Tribunal which were received on 14 November 2012. Documentation was also requested from the complainant on 15 November 2012 and received on 21 November 2012.

3. Summary of complainant's case

3.1 The complainant applied to the respondent on 19 November 2008 for a position in the area of Coaching and Games Development following an advertisement in the Irish Examiner. The complainant was 58 years old at the time. These positions were subsequently called Games Development Administrators (GDAs). The advertisement described in some detail the duties of the positions. As regards requirements, the advertisement stated that "successful candidates will be expected to have a level 1 coaching qualification and/or relevant experience". On 24 March 2009 the complainant received a letter from the respondent acknowledging his application and explaining that the filling of the positions was being delayed pending the appointment of a County Games Manager to whom the GDAs would report. It was the respondent's intention to fill the Manager position before proceeding to interview for the GDAs. The respondent stated its intention to re-advertise the GDA positions but there was no need for the complainant to re-apply. The letter also stated that short-listing may apply for the GDA positions and that the complainant would be informed in writing of the panel's decision. The second advertisement differed significantly from the first in that it gave much more detail on the requirements for the positions.

3.2 On 17 June 2009 the complainant received a letter from the newly appointed County Games Development Manager informing him that he had not been shortlisted as "we have been able to draw on a shortlist of candidates whose experience and skills more closely match the requirements of the vacancy".

3.3 On 3 July 2009 the Complainant sought details of the criteria applied in the short listing process i.e. a copy of the Job Description and Person Specification. He expressed his concern that his application had not been treated in a fair and equal manner having regard to his extensive experience, broad range of skills, accumulated knowledge/qualifications and positive attitude. He specifically referred to the qualifications and/or experience and duties of the positions as listed in the advertisement of November 2008.

3.4 There followed a protracted period of correspondence in which the complainant expressed his dissatisfaction with the information provided to him by the respondent. The complainant received a response in early September 2009 which set out "criteria and parameters on which candidates were marked for the position of games Development Administrator". These criteria and parameters differed from the detail which was set out in the original advertisement to which the complainant responded. The criteria used were:-

1. Appropriate 3rd level qualification
2. At least 3 years experience of working in the GAA or similar sporting organisation (voluntary or professional capacity)
3. Clear and detailed knowledge of the GAA's coaching schemes and initiative
4. Excellent administrative and IT skills. Working knowledge of IT related packages and system
5. Excellent communication/presentation skills (verbal and written)
6. Ability to effectively manage multiple projects and deadlines; hands-on approach to getting things done
7. excellent ability to build good team relationships and manage conflict
8. Level 1 Coaching certificate.

3.5 Under each criterion, candidates were awarded 1, 2 or 3 marks. "1" was "poor", "2" was "adequate" and "3" was "excellent" so that the total available marks were 3 x 8 = 24. The respondent acknowledged that his CV was very substantial in content. His short-listing assessment was annotated "good candidate but marks below cut-off point". His marks totalled 17 but the cut-off point was not stated. (The respondent subsequently stated in its submission to the Tribunal that the cut-off mark was 21).

3.6 On 3 September 2009 the complainant submitted a detailed list of questions on a form (Form EE2) prescribed by the Equality Tribunal. The complainant got a reply to these questions about 2 months later.

3.7 The complainant believes that he was discriminated against on the age ground in not being short-listed for interview, for the following reasons:

1. The expectations and duties delineated in the original advertisement differed from those in the short-listing assessment form and his letter of application and CV were in response to the former. This apparent arbitrary change and the absence of a job description and person specification facilitated bias and discrimination in his case.
2. The marking given to his entire application is not consistent with his experience, qualifications, skills, knowledge, attitude and motivation. He has been underscored for 6 of the 8 criteria/parameters.
3. It is acknowledged by the respondent that he was a good candidate and that his CV was very substantial and that he exceeded the mark that would designate "Adequate" i.e. 16 marks yet the cut-off point was in excess of that level.
4. Some of the criteria specifically determined for the post, contained in the short-listing assessment form itself do not lend themselves to measurement by reference to letters of application and CVs.

The complainant alleges that the lack of transparency in the shortlisting procedure gives rise to an inference of discrimination.

4. Summary of respondent's case

4.1 The respondent initially advertised the positions of Games Development Administrator (GDA) in November 2008. On 19th December 2008 all applicants received a letter acknowledging receipt of their application and indicating that short-listing would apply to all applications.

4.2 Following a national review of coaching structures it was decided to create a position of County Games Development Manager (CDM) to manage the GDAs in each county. As a result the recruitment process for the GDA positions was temporarily postponed. In March 2009 all applicants received a letter from the respondent explaining the situation and informing them that they did not need to re-apply when the positions were re-advertised. A nationally agreed Job Description and Person Specification for the GDA role was used to draft the second advertisement. The positions were subsequently re-advertised in May 2009.

4.3 An interview panel was established comprising the chair of the Munster GAA who acted as chairman, the chair of the 3rd level colleges committee and the Munster Coaching and Games Development Manager. The newly appointed Games Development Manager acted as secretary to the board. He had no input to the selection process.

4.4 The respondent was advised throughout the recruitment process by the GAA's national HR manager who produced a detailed short-listing assessment form for use during the selection process. This document was developed form the Job Description and Person Specification for the GDA role referred to above. The interview panel met on 15th June 2009 to create a shortlist of candidates for interview. As part of this process the panel reviewed all applications received (109 in total) using the short-listing assessment form to grade the applications. Due to the high calibre of applicants 21 points was set as the cut off point for interview. Subsequently the top ranked 27 candidates were selected for interview. The respondent wrote to those who were not short-listed to inform them that they were unsuccessful.

4.5 The respondent contends that the complainant has not linked any of the points he raises to the alleged age discrimination. The complainant wrote to the secretary of the Board on 3 July 2009 indicating that he was not satisfied that his application was treated in a fair and equal manner having regard to his extensive experience, his broad range of skills, his accumulated knowledge/qualifications and positive attitude and commitment over a wide ranging career. He did not allege age discrimination at that point.

4.6 The respondent at the hearing admitted to poor administration in the recruitment process, in particular that those who answered the initial advertisement were not asked to reapply when the second advertisement differed significantly from the first. This was due to the introduction of new systems, new structures and new staff, they said. However they deny that age was a factor at all in the selection process. The respondent points out that applicants were not asked their age or date of birth in the application form. The respondent stated that the complainant did not present himself to his best advantage in his application form and covering letter in that he did not clarify his experience in the GAA.

5. Applicable law.

5.1 The legal principles applicable in a case such as this are well established in the case-law of the Labour Court and were be briefly summarised in Dr Eleanor O'Higgins v University College Dublin¹ . Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. In A Worker v A Hotel² the Labour Court held as follows in relation to the application of this provision: -

The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court in Kieran McCarthy v Cork City Council Labour Court Determination EDA082 (December 16, 2008)).

5.2 Particular considerations apply in cases in which discrimination is alleged in the filling of jobs. In Kathleen Moore Walsh v Waterford Institute of Technology³ the Labour Court held that in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merit 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. The test for manifest irrationality is as laid down in State (Keegan) v Stardust Victims' Compensation Tribunal [1986] I.R. 642 at p. 658:
I would consider that the test of unreasonableness or irrationality ... lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.

5.3 In O'Halloran v Galway City Partnership⁴ the Labour Court pointed out that the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise. That approach is consistent with the decision of the Northern Ireland Court of Appeal in Wallace v. South Eastern Education and Library Board⁵ . Here, Lowery LCJ held that the appointment of a less qualified man to a position in the Respondent Library Board in preference to a more qualified woman was in and of itself sufficient to raise an inference of discrimination.

5.4 Where a prima facie case is made out, the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the gender of the complainant and the impugned act or omission alleged to constitute discrimination. Thus, in Wong v Igen Ltd⁶ and others (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

5.5 In all discrimination cases the Court should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious. In Nagarajan v London Regional Transport⁷ , Lord Nicholls of Birkenhead said the following: -

I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.

While that case involved a claim of racial discrimination the general principle enunciated by Lord Nicholls is equally applicable in cases involving other forms of discrimination such as age.

5.6 A similar approach was taken by the Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited⁸ . Here, in a case involving age discrimination, the Labour Court held: -

Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court 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.

5.7 In Nevins, Murphy, Flood the Court also considered the quality of evidence that should be expected from a Respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite⁹ , the Labour Court held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden.

5.8 From these decisions and authorities the following principles have been identified by the Labour Court:

1. It is for the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination
2. If the Complainant discharges that burden it remains for the Tribunal to decide if those facts are of sufficient significance to raise the inference contended for.
3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts
4. In cases concerning the filling of a post it is not the role of the Tribunal to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.
5. The Tribunal will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result
6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.
7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8. The Tribunal 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.

6. Conclusions

6.1 Looking at the recruitment process, I believe from the evidence presented to me that the process was flawed in several respects.

1. There was no clear distinction between essential and desirable selection criteria.
2. The initial advertisement did not specify the criteria which actually applied to the selection process. Those who answered the initial advertisement were not invited to resubmit their application in the light of the more detailed criteria contained in the second advertisement.
3. Although being in possession of an appropriate third-level qualification appeared to be an essential qualification, the lack of a 3rd level qualification did not appear to disqualify. Two or three of those shortlisted did not appear to have one.

The question that must be answered is: do these flaws amount to primary facts of sufficient significance to raise a presumption of age discrimination?

6.2 In agreement with the complainant and respondent I examined the complainant's application and compared it with the 27 which were shortlisted. Applicants were not asked for their age or date of birth. Assuming that all candidates sat their leaving certificate at age 18, the successful candidates ranged in age from 23 to 48, as follows:-
Age 20-30: 12 shortlisted
Age 30-40: 6 shortlisted
Age 40-50: 9 shortlisted
Three candidates did not give a year for their leaving certificate. Of these 2 appeared to be over 40 and one in his/her 20's and are included above. The complainant was 58 years old at the relevant time. These statistics do not in themselves give rise to an inference of age discrimination.

6.3 Criteria for selection for appointment must not be discriminatory on grounds of age. This covers not just explicit age requirements but also age proxies. I have examined the eight criteria used to shortlist the candidates, as follows:

1. Appropriate 3rd level qualification
2. At least 3 years experience of working in the GAA or similar sporting organisation (voluntary or professional capacity)
3. Clear and detailed knowledge of the GAA's coaching schemes and initiative
4. Excellent administrative and IT skills. Working knowledge of IT related packages and system
5. Excellent communication/presentation skills (verbal and written)
6. Ability to effectively manage multiple projects and deadlines; hands-on approach to getting things done
7. excellent ability to build good team relationships and manage conflict
8. Level 1 Coaching certificate.

None of these criteria are, in my view, age proxies which would serve to exclude older candidates.

6.4 The complainant was unknown to the members of the short-listing committee. It is arguable that the complainant ought to have been given higher marks for his 3rd level qualification of M.A. in sports psychology. The complainant has also argued that he ought to have been awarded higher marks under a number of other headings. I don't think that the complainant did full justice to himself in his application. In particular he did not go into as much detail as the others did about his GAA experience. The complainant's application, while meritorious, does not stand out as so much better than those who were shortlisted so as to lead me to conclude that not short-listing his application flew in the face of fundamental reason and common sense. In the absence of clear evidence of manifest irrationality in the result, I shall not seek to undertake my own assessment of the candidates or substitute my views on their relative merits for those arrived at by the selection board¹⁰ . I conclude the complainant has not proved primary facts of sufficient significance to raise the inference of direct age discrimination.

6.5 Indirect discrimination is defined in the Acts as where an apparently neutral provision puts persons of a particular age at a particular disadvantage in respect of any matter compared with others. The question is: did the way the selection process was conducted, while not directly discriminatory on the grounds of age, put older persons at a particular disadvantage compared with younger persons? In particular, did the procedural weaknesses identified above disadvantage older persons?

6.6 There is no evidence presented to me that the lack of clear distinction between essential and desirable criteria particularly disadvantaged older candidates. There is no evidence that the differences between the first and second advertisements disadvantaged older applicants in particular. From looking at the applications of the other candidates it would appear that those without an obvious third level qualification appeared to be older than the average. It would appear that ignoring this criterion did not appear to disfavour older candidates.

7. Decision

7.1 In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

7.2 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Acts. I find that the complainant was not discriminated against by the respondent on grounds of age within the meaning of sections 6 (2) (f) the Acts and contrary to section 8 (1) (a) of the Acts in relation to access to employment when he was not shortlisted for interview for a Coaching and Games Development position.

Niall McCutcheon
Director

25 July 2013.

Footnotes:

¹ Labour Court Determination No. EDA131

² [2010] 21 E.L.R. 72

³ Labour Court Determination EDA042

⁴ Labour Court Determination EDA077

⁵ IRLR 193

⁶ [2005] EWCA Civ 142

⁷ [2001] UKHL 48

⁸ [2005] 16 E.L.R. 282

⁹ 2003] I.R.L.R. 322

¹⁰ John Cotter v County Limerick VEC Labour Court EDA0910