The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-043
PARTIES
Helen Malpas
AND
Roscommon County Citizens Information Service Ltd.
(Represented by Peninsular Business Services (Ireland) Limited)
File reference: EE/2012/021
Date of issue: 16 June 2014
HEADNOTES: Employment Equality Acts - Sections 6 and 8 – Age - Access to employment.
1. DISPUTE
1.1 This dispute concerns a claim by Helen Malpas that she was discriminated against by Roscommon County Citizens Information Service Limited on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts in relation to access to employment in terms of sections 8(1)(a) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 4 January 2012 under the Employment Equality Acts. On 29 April 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 7 May 2014.
2. COMPLAINANT’S SUBMISSION
2.1 From August 2007 the complainant was a volunteer Information Provider in Boyle Citizens Information Centre. In September 2011 the respondent advertised a position for a full-time Information Officer to be employed in Roscommon Town. The successful candidate was a half-time Information Officer employed in Boyle. The complainant submits that the part-time subsequent vacancy in Boyle was not advertised but was filled by the 2nd placed candidate from the panel which had been set up from the competition for the full-time position in Roscommon. The complainant submits that the person appointed to the Boyle position was younger than her and less well qualified.
2.2 The complainant submits that the failure to advertise the part-time vacancy in Roscommon meant she was by-passed and this was done because she was close to retirement. The complainant contends this amounts to indirect discrimination as the advert appeared neutral in content but was an instrument of discrimination.
2.3 The complainant submits that previously, in late 2009, a full-time Information Officer position and a part-time Information Officer were advertised. Two separate adverts were placed, there were separate interview boards and two separate panels were set up.
2.4 The complainant submits that the respondent failed to complete the EE2 form and asks that an inference be drawn from the respondent’s failure to provide the information requested.
3. RESPONDENT’S SUBMISSION
3.1 The respondent submits that it has a mix of paid staff and volunteers. In August 2007 the complainant started with them as a volunteer. From August 2007 until December 2011 she worked 4 hours per week; a total of around 820 hours.
3.2 The respondent submits that in September 2011 they advertised for a full-time Information Officer position in Roscommon Town. The advert contained a provision that “a panel may be formed from this competition, from which future vacancies may be filled”. This panel would be set up for one year. Setting-up such a panel has been the practice of Roscommon CIS since 2007 and is laid out in the Employer’s Handbook. The main reason for setting-up the panel is to reduce recruitment costs and to save staff time.
3.3 The advert yielded 107 completed application forms. The complainant did not apply. Following the interview process the position was offered to someone who was employed as a part-time Information Officer in Boyle CIS. Therefore, there now arose a vacancy for that part-time position in Boyle. The respondent approached the second and third placed candidates from the interviews but they both turned down the offer. It was accepted by the fourth placed candidate.
3.4 The respondent submits that the person appointed to the part-time Information Officer post in Boyle was 42 years old and had nearly ten years experience with the Citizens Information Service, amounting to around 8,120 hours; 7 years on a Community Employment Scheme (19.5 hours per week), 2 years as a volunteer (7 hours per week), and was employed for 6 months (17.5 hours per week).
3.5 The respondent submits that in 2009 they advertised for a full-time vacancy and a part-time vacancy simultaneously because both positions were vacant at the same time. All candidates for both positions were interviewed at the same time by the same interview board and one panel was made from the interviews. The advert for these positions also contained a similar provision regarding the formation of a panel from which future vacancies may be filled.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision is whether the complainant was discriminated against on the ground of her age in relation to access to employment. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The complainant chose not to apply for the first vacancy because she did not want a full-time job and did want to undertake the 60 mile round trip to Roscommon town. She contends that not being allowed to apply for the second post was discriminatory. She contends that she was the only person in Boyle Citizens Information Service that was so affected. The complainant contends she was side-lined because of her age.
4.3 The respondent contends that when they run a recruitment competition they have a practice of establishing a panel from which future vacancies may be filled within the next year. They contend that the main reason for establishing such panels is to save money from having to re-advertise and to save the time of those involved in the recruitment process; particularly when they receive such a large number of applicants.
4.4 Section 8 (5) states: “Without prejudice to the generality of subsection (1), 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, or
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons,
where the circumstances in which both such persons or classes would be employed are not materially different.”
In assessing whether the respondent has breached section 8 (5) I must take consider section 6 (1) of the Acts which states: “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 this claim the ground is age.
4.5 There is no argument that the complainant was not considered for the part-time post in Boyle. She was not considered because she did not apply for the full-time post in Roscommon. The respondent used the panel formed from that competition to fill the consequent part-time vacancy in Boyle. This meant that everyone who did not apply for the first competition was not considered for the second vacancy.
4.6 The reasons that people might not apply for the first post but may have been interested in the second post could be quite varied. They would certainly include those, like the complainant, who were not interested in a full-time position and/or did not want to travel very far. The respondent says that anyone in that position was excluded for pragmatic reasons (to avoid re-advertising) which were unrelated to discrimination.
4.7 The complainant contends the discrimination is indirect because the apparently neutral provision, of using the panel from the first competition to fill a subsequent vacancy, meant she was not considered. I note that the provision in the advert regarding the filling of future vacancies gives no indication of what future vacancies may be filled; whether that be the geographical spread or if it includes full-time and/or part-time vacancies. The complainant did not expect a part-time vacancy in Boyle to be filled from this competition for a full-time vacancy in Roscommon Town. Therefore, I understand the complainant was upset that she did not have the opportunity to apply for a position for which she considered she was suitable and which suited her own circumstances. I consider it would be prudent for the respondent in future advertisements to clarify what subsequent vacancies may be filled, i.e the geographical spread and whether full-time and/or part-time vacancies. However, having considered all the evidence, I can find no link to the complainant’s age in the circumstances that led to her not being considered for the second position.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of discrimination on the grounds of age in relation to access to employment.
.
____________________
Hugh Lonsdale
Equality Officer
16 June 2014
Decision: DEC-E2014-043