DEC-E2013-108

Equality Officer's Decision
DEC-E2013-108

Mark Davis
versus
Central Statistics Office

File reference: EE/2010/001
Date of issue: 11th September 2013

Keywords: Employment Equality Acts, Age, Promotion, Harassment, Victimisation, No prima facie case.

Dispute

1.1 This dispute concerns a complaint by Mr Mark Davis against the Central Statistics Office (CSO). The complainant alleges that he was discriminated against on the grounds of age in relation to access to promotion contrary to the Employment Equality Acts 1998-2011 [hereinafter referred to as the 'Acts']. He also claims harassment and victimisation. Mr Davis subsequently took early retirement so therefore no longer in the employ of the respondent.

1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 31st December 2009. In accordance with his powers under Section 75 of that Act, the Director delegated the case on 26th March 2012 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 28th June 2012.

Summary of the complainant's case

2.1 In July 2002, the complainant joined the Central Statistic Office as a Statistician (Assistant Principal grade) after a career in the private sector. He came second on the panel (following an examination and competency-based interview) out of a fiield of 299 candidates. He submits that he enjoyed his work and always received positive ratings in his performance management reviews.

2.2 Therefore when a competition for promotion to Statistician (Higher Scale) [Assistant Principal One] came up in 2009, he thought he had a good chance. He was aged 55 at the time. He had previously received a positive endorsement in the 2006 competition but was not promoted. Assessment in the 2009 competition was based on candidates' Performance Management Development System (PMDS) ratings, their supervisors' assessment of them based on ten competencies and on their application forms. A selection board from the senior management of the CSO then assessed candidates on these i.e. there were no interviews. Mr Davis submits that he was disappointed to get the lowest marks from his supervisor of any candidate. The competition board marked him slightly higher so, in the end, he came 48th out of 51 candidates. In this previous three annual performance reviews, Mr Davis had received four out of five which is defined in the PMDS structure as 'fully met all role requirements to required standard and significantly exceeded standard in some respects'. He submits that no shortcomings were ever pointed out to him at these annual reviews.

2.3 Mr Davis submits that no notes were retained of the selection board meeting where the shortlisting occurred. He submits that the lack of documentation regarding the selection process puts his treatment on 'all fours' with Gillen v Department of Health and Children:

In this instance, I must consider that the absence of interview notes as well as the lack of proper assessment criteria strongly supports the allegation of discriminatory practices.¹

2.4 When he sought feedback on why he did not score higher, he was told that the 'lack of challenge' in his role was one of the reasons that he did not get shortlisted. Mr Davis submits that he had no control over where he was placed and it was only seen as unchallenging because he performed well at his role. He submits that he was penalised for using his experience and knowledge, which he submits are both age-dependent, to do a good job. He also submits that a younger person would not be put in a perceived 'backwater' nor would they be willing to transfer to a career-ending role.

2.5 He submits that because his supervisor only assessed Mr Davis on his [supervisor's] experience of his work, Mr Davis said he had no chance of ever being promoted and that therefore this is victimisation within the meaning of the Acts. He also submits that because he has not been promoted to the AP1 grade that he is ineligible to be promoted to the PO grade and this constitutes victimisation as well as discrimination that 'may exist in the future'.

2.6 Following his complaint about this competition, he submits that the then Director General of the CSO said to him in an aggressive way 'there are better people here than you'. Mr Davis submits he had to go to his General Practitioner after this meeting.

Summary of the respondent's case

3.1 The respondent refutes Mr Davis's allegations. They submit that the competition was conducted in accordance with the Code of Practice for Appointment to Positions in the Civil Service and Public Service². As recommended under this Code, when Mr Davis was not happy with this process an internal independent review of the competition was conducted by Ms A. Mr Davis appealed the result of this to the Commission for Public Service Appointments. He was not successful.

3.2 The respondent acknowledges that Mr Davis was a good worker. This is reflected in him getting four out of five in his annual reviews for the previous three years. Nevertheless, they point out that they are fortunate in the standard of their staff and therefore four is the most common rating for Statisticians working there. Thirty-five statisticians were awarded a rating of four while nine statisticians received a rating of five in 2008.

3.3 When it came to Mr Davis's suitability for promotion assessment form, Mr Davis's supervisor gave him a rating of three for seven of the competencies and four for three of the competencies. The CSO submit that this is not wildly deviant from a rating of four in his PMDS reviews.

3.4 At the time of the competition, Mr Davis was the oldest candidate at 55 and had seven years experience in the CSO. He was awarded 66 marks by the selection board. The next oldest candidate was 54 and had the same amount of years of experience as Mr Davis. He was awarded 76 marks. The third oldest candidate was aged 53 and had three years of experience. She scored 78 marks, which is only two marks lower than the final candidate appointed in this competition, was awarded. The average age of successful candidate was 40 while the average age of unsuccessful candidates was 38.

3.5 The selection board found Mr Davis's application form weak and he did not refer to the ten competencies by which he was to be assessed as stated on the office notice accompanying the application form as well as the form itself.

3.6 The CSO refutes his assertion that AP2s (as opposed to AP1s) are ineligible to go for PO vacancies. They also deny that the Director General or anybody else was aggressive to Mr Davis.

Conclusions of the Equality Officer

4.1 There are three issues for me to decide:
(i) whether the complainant is entitled to succeed in his complaint regarding access to promotion contrary to 8 (1)(d) of the Acts on the ground of age
(ii) whether the complainant was harassed on the ground of age as defined in Section 14A of the Acts
(iii) whether the complainant was victimised with the meaning of Section 74 of the Acts

4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he was discriminated. 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.

Access to promotion
4.3 In Donal Coughlan v Cumann Lúthchleas Gael Chorcaí the Director of the Equality Tribunal succinctly captured seven principles to be considered in access to employment or promotion cases:

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. ³

Mr Davis was the oldest candidate and he came 48th out of 51 candidates. However, to establish a prima facie case of discrimination, evidence must be adduced that the reason Mr Dixon did not rank highly was because of his age. First of all, I will look at the statistical evidence. I compiled the attached table:

• There were no candidates under 27 or over 55
• Mr Davis was not in contention for the Senior and Suitable promotion as he was only seven years working there

Both the complainant and the employees of the respondent are better statisticians than I am. The complainant could point out that the age range 45 to 55 is a year longer than the other two and that nobody over 48 was promoted but, on the other end of the scale nobody younger than 29 was either. The median age of successful candidates is 38.5 and the median age of unsuccessful candidates is 36 which do not assist Mr Davis's case. Therefore, the statistical evidence is not compelling in his favour.

4.4 Mr Davis has argued that because no minutes were retained of the selection board meeting where the candidates were assessed, Fagan v Office of the Revenue Commissioners⁴ and Gillen v Department of Health and Children⁵ applies. While the selection board were remiss in not retaining notes of this meeting, all other aspects of the competition were transparent e.g. the briefing note for the selection board gave clear instructions about how the candidates were to be assessed. From the thorough and professional investigation conducted by Ms A under the CPSA procedure, it is obvious that candidates were genuinely assessed in accordance with the aforementioned Code of Practice. After the competition, all candidates received their marks under each competency as well as a short narrative feedback. Oral feedback was also offered to each candidate. Therefore the way this competition was conducted differs significantly form the promotion competitions in the two decisions cited by the complainant.

4.5 Mr Davis's application form was submitted as evidence. It is clear from the application form that candidates were to be assessed based on competencies. Mr Davis did not refer AT ALL to the ten listed competencies. It is unfortunate for Mr Davis that he did not use this opportunity to sell his valuable experience and skill-set to the selection board. From the favourable PMDS ratings and evidence given by the respondent at the hearing, it is clear that Mr Davis was good at his job. The migration of Environmental Accounts from Excel to SAS had been a stated objective in his division for the prior five years but the previous two incumbents in Mr Davis's role had not accomplished it. Mr Davis did and was also responsible for producing the Material Flow Accounts for Ireland. Ireland was one of the first countries in the EU to publish these. However, Mr Davis's attributes simply did not come across in the application form. When I asked Mr Davis whether he had to complete a competency-based application form to join the CSO, he agreed that he had. Because of this as well as being a manager of staff (and therefore, had a mentoring role) he should have been aware that almost all public sector competitions in Ireland are competency-based. As there was no interview, this was Mr Davis's opportunity to shine and he missed it.

4.6 Mr Davis's supervisor gave him the lowest rating of any candidate. However, no evidence was adduced that this was because Mr Davis was older than other candidates were. I am satisfied that it is because his supervisor is, by his own admission, a stringent marker. As pointed out by Ms A in her review under the CPSA procedure, two previous work-related grievances raised by the complainant may also have been a factor in his supervisor's low mark. While this may be been unreasonable by his supervisor, I can find no evidence to demonstrate that is indicative of a conscious or unconscious discriminatory bias.

4.7 Direct evidence was given at the hearing that at the selection board meeting, attention was focussed on the top band of candidates, as these were the likeliest to be promoted. Because of his weak application form, they submit that they did not see the need to radically change Mr Davis's ranking. This does not indicate discrimination.

4.8 Regarding Mr Davis's claim that an only an older person would be placed in a 'backwater' and therefore be denied equality of opportunity, I did not find evidence to support this assertion. It is noteworthy that only three candidates were appointed from this competition and a candidate only two years younger than the complainant scored very highly and was close to being appointed.

4.9 Based on the all the above, I am satisfied that Mr Davis has not established a prima facie case of discrimination on the ground of age.

Harassment
4.10 Harassment is defined in Section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

4.11 While Mr Davis's supervisor may have raised his voice to him, I can find no evidence to suggest that it was linked to his age. In other words, I am satisfied that his supervisor could have shouted at a younger colleague over a similar work-related issue. While I am not condoning tempers being lost in the workplace, my remit is confined to whether it constitutes harassment within the meaning of the Acts. I find that it does not.

Victimisation
4.12 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.

4.13 Mr. Davis claims he was victimised on two counts - the first one being what, he submits, was an aggressive reaction when he made a complaint about the promotion competition. The Director General accepts that he did say 'there are better people in the organisation than you' but denies he said it in an aggressive way. In April 2010, he wrote to Mr Davis pointing out that he was a valuable member of staff and an important asset to his division. Therefore, the evidence is insufficient to establish a prima facie case of victimisation in relation to this issue. In relation to the issue of eligibility to promotion to Senior Statistician (Principal Officer), it is clear that both AP2s as well as AP1s were eligible to apply when a competition for vacancies arose. Generally, AP1s did better in these competitions. This is not surprising as in a hierarchical organisation somebody slightly higher up the hierarchy is likely to do better in such a competition. Mr Davis has failed to establish a prima facie case of victimisation regarding this issue.

Decision

I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) the complainant is not entitled to succeed in his complaint regarding access to promotion contrary to 8 (1)(d) of the Acts on the ground of age
(ii) the complainant was not harassed on the ground of age as defined in Section14A of the Acts
(iii) the complainant was not victimised with the meaning of Section 74 of the Acts

Recommendation

As the complaint has not been upheld, I am not in a position to make an order for the respondent to undertake a particular action. However, I recommend that adequate records of selection processes (including minutes of meetings where candidates are assessed) should be retained in order to demonstrate that the entire selection process is objective and free from bias on any of the grounds covered by the Acts.

______________
Orlaith Mannion
Equality Officer

Footnotes:

¹ DEC-E2008-004
² http://www.attorneygeneral.ie/csso/english/CPSA-CivilPublicServiceCode.pdf
³ DEC E2013-081
⁴ DEC-E2008-004
⁵ DEC-E2003-035