FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : CENTRAL STATISTICS OFFICE (REPRESENTED BY NAP KEELING, B.L. INSTRUCTED BY THE CHIEF STATE SOLICITOR'S OFFICE) - AND - MARK DAVIS DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The former Employee appealed the Decision of the Equality Officer to the Labour Court on the 11th October, 2013. Labour Court hearings took place on the 4th March, 2014 and on 2nd May, 2014. The following is the Court's Determination:-
DETERMINATION:
This is an appeal against the Decision of an Equality Officer in a claim by Mr Mark Davis against his employer the Central Statistics Office alleging discrimination on the grounds of age in the filling of a promotional post and victimisation. The Equality Officer held that the Complainant was not entitled to succeed in his complaint regarding access to promotion contrary to Section 8(1)(d) of the Employment Equality Acts 1998 to 2011 (the Acts) on the ground of age, he was not harassed on the ground of age as defined by Section 14A of the Acts and he was not victimised within the meaning of Section 74 of the Acts.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Mark Davis will be referred to as “the Complainant” and the Central Statistics Office will be referred to as “the Respondent”.
At the hearing of the appeal before the Court, the Complainant clarified that he was not pursuing a claim of harassment or victimisation. He informed the Court that the appeal was limited to the Equality Officer’s Decision where she found that the Complainant was not entitled to succeed in his complaint regarding access to promotion contrary to Section 8(1)(d) of the Acts on the ground of age.
Background
The Complainant was employed by the Respondent as a Statistician from July 2002 until his retirement in July 2012. The post was graded at Assistant Principal Officer level. He applied for an internal promotion competition to Assistant Principal One level in April/May 2009. At that time he was 55 years of age. This promotion for assignments to Statistician (Higher Level) came about as a result of the PCW Agreement wherea number of higher scale posts were made available based on a competitive process agreed with the IMPACT trade union.
The Complainantwas placed joint 46thout of 51 applicants. On 6thJuly 2009 he was informed that he was unsuccessful. As he felt that this was inconsistent with his work record the Complainant appealed the result in accordance with the terms and conditions of the Code of Practice for Appointments to Positions in the Civil Service and Public Service. In accordance with the terms of the Code of Practice, an independent investigator, Ms Deirdre Cullen, Senior Statistician (referred to as the Internal Reviewer), was appointed by the Respondent to investigate the case.
The Internal Reviewer’s Report was issued in mid-April 2010. It found,inter alia,that the Code of Practice had been breached in the Complainant’s case, he had been unfairly marked by his Supervisor in the initial stages of the competition and an incident which occurred between the Complainant and his Supervisor nine months prior to the competition could have influenced his marking and could have led to his relocation to a “low profile area”. The Internal Reviewer found that, as the Complainant had no influence over the area he was assigned to, the taking of such matters into account during assessment breached the basic principles of the CPSA Code of Practice on equality of treatment.
However, the Report found no evidence that the marks awarded to him by the Consistory Board (latterly known as the Selection Board) were influenced by his age or any other extraneous factors. It found that the assessment of candidates conducted by the Consistory Board was not rigorous enough to correct the possible errors or bias that might have been present as it was based on an assessment by the candidate’s Supervisor and as a result the low rating he achieved was not challenged. It found that the Complainant was not treated any differently by the Consistory Board to any other candidate and found that there was no evidence to suggest that a “prior grievance” contributed in any way to the final marks awarded to the Complainant.
Finally, it found that the results of the competition showed that the average age of the successful candidates was 40 years while the average age of the unsuccessful candidates was 38 years and concluded that no consideration was made of the age of any of the candidates including the Complainant.
This Report was supplied to the Complainant by the Director General on 6thMay 2010. The Director General welcomed some of the Internal Reviewer’s conclusions, however, he qualified a number of others and informed the Complainant that he could seek a further review by referring the matter to the Commission for Public Service Appointments (CPSA) by way of an appeal.
The Complainant appealed by letter dated 11thMay 2010. By further letter to the CPSA dated 29thJune 2010 the Complainant alleged indirect ageism in the process. As the Respondent had no opportunity to respond to the ageism allegation, the CPSA did not consider it in its Report.
Having completed its work the CPSA concluded that the Complainant’s Supervisor should have done more to encourage an open discussion with him. This might have provided him with an opportunity to elaborate on some of the skills, knowledge and experiences gained in other roles and to address why his then current role provided less opportunity to demonstrate competencies than other roles. It recommended that the Respondent should review this process with a view to providing a greater opportunity for candidates to demonstrate their overall performance in the competencies and not just their work with their current assessors.
Summary of the Complainant’s Case
The Complainant submitted to the Court that his case was not about establishing why he was not promoted in the competition but about the unwritten selection criteria used in the initial “screening out” marks awarded to candidates before the application form was considered. The “unwritten selection criteria” he referred to was the Supervisor’s marking of candidates on their performance in their assigned role.
The Complainant submitted that these criteria, which he described as an “unofficial,unregulated shadow system”, only came to light when the competition was over, theInternal Reviewer’s Report had been completed and the CPSA Report had been finalised. He stated that this situation only came to light when the Assistant Director Generalin an e-mail of 18thAugust 2010 to the Respondent’s Personnel Officerapproved the Line Manager’s discountingof the Complainant’s previous experience. The Assistant Director General stated:
"A candidate can only be marked on his performance in the role assigned….”
The Complainant contended that the approval of unwritten and unspoken criteria as legitimate promotion considerations was in clear breach of the principles of fairness and transparencyavowed bythe Code of Practice and were discriminatory on the age ground.
The Complainant expressed his need to understand why he was awarded an initial mark which had nothing to do with the published terms and conditions of the competition and which excluded him from further consideration. He submitted that the unwritten selection criteria were interpreted and applied in a way which took his age into account, with the objective of removing any possibility of promotion from him prior to his retirement, as it would not be possible for him to accumulate the requisite “promotable” experience in a new post.
When the Complainant sought feedback after he was unsuccessful in the competition he was told that the “lack of challenge” in the role that he performed was one of the reasons for his failure to succeed. The Complainant contended that this perception was based on the fact that he performed well in the role.
The Complainant contended that a combination of the selective non-recognition and negative weighting of his previous relevant experience was age-discriminatory. The Complainant submitted that these criteria were not applied to any younger candidates in the competition, all of whom, according to the Respondent, were marked on “merit” and not on the posts they occupied. He submitted that employees are either short-listed or not depending on the section they are assigned to work in and not on their work performance.
In referring totheInternal Reviewer’s Report the Complainant contended that it found that his initial low assessment mark effectively ruled him out for consideration for promotion because it was used to pre-screen candidates from further progression in the competition. It found that he had been given an assessment by his Supervisor which was based on the Supervisor's view that the Complainant worked in a "backwater" and that it was not based on the quality of his work.
He said that the Report also found that none of the Complainant's experience elsewhere in the organisation or external to it had been taken into account by the Supervisor in his assessment. The Supervisor considered only the work that the Complainant had done under his supervision thereby dismissing all previous experience.
The Complainant submitted that the use of an improper and unpublished assessment criterion which occurred in his case discriminated against him on the ground of his age.
Summary of the Respondent’s Position
Mr Nap Keeling, B.L., instructed by the Chief State Solicitor’s Office, on behalf of the Respondent, denied the Complainant’s allegation of discrimination on the ground of age.He said that the Respondent hadexamined the results of the 2009 competition for Statistician (Higher Scale) and extracted the following information relating to
applicants who were comparators to the Complainant in that they joined the CSO relatively late in their careers and were similar in age and length of service:-
- a)Complainant - age 55, joint 46thon equal marks with four others on 66 marks;
b)Mr A, age 54 - joint 13thon equal marks with ten others on 76 marks; and
c)Ms B, age 53 - joint 6th on equal marks with five others on 80 marks.
Over the course of his employment with the Respondent the Complainant applied on three occasions for assignment to Statistician (Higher Scale), twice in 2006 and in the 2009 competition. The Complainant was placed:-
- a)April 2006 - 20thout of 28, ranked in the third quartile
b)July 2006 - 20thout of 29, ranked in the third quartile
c)April 2009 - joint 46thout of 51,ranked in fourth quartile
Mr Keeling stated that the Complainanthad the same opportunity as all other applicants to outline his abilities and experience and to show how he demonstrated the required competencies. However, his application form was very brief and lacked reference to the required competencies.This was reflected in his placing in the competition and in the feedback he received from the selection board on his marking sheet:
- "Good evidence from the assessment form of acceptable solid performance across the range of competencies.However the application form did not directly address the required set of competencies. "
The Complainant’sperformance in the three promotion competitions was broadly similar as in all three competitions he was in the lower half of the field of applicants. Atthe time of the first two competitionsin 2006the Complainant’sworked in the National Accounts area. At the time of the 2009 competition he worked in Environmental Accounts.
In the 2009 and earlier competitions, appointments to Statistician (Higher Scale) alternated between two panels ranked respectively by merit criteria and seniority. Between 2000 and 2009 in the criteria-only process i.e. based on merit:
- 12.1% of those aged between 25 and 34 years were successful,
5.1% of those aged between 35 and 44 years were successful,
4.7% of those aged between 45 and 55 years were successful.
Whereas overall taking the criteria and seniority-based process the following were successful:
- 12.1% of those aged between 25 and 34 years were successful;
23% of those aged between 35 and 44 years were successful; and
25% of those aged between 45 and 55 years were successful
The test is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board[2001] E.L.R. 201.
The lawin relation to thefilling of posts,including promotions,is well settled. In Determination EDA042Kathleen MooreWalshvWaterford Instituteof Technologythis Court held that in cases involving thefilling of posts it is not thefunction of the Court to substitute its views on therelative merits of candidates for those of the designated decision-makers. Rather,its role isto ensurethat the selection process isnot tainted byunlawful discrimination. Consequentlythe Court will not normallylook behind a
decision unlessthere isclear evidence of unfairness in the selection process or manifest irrationalityin theresult.
In Determination EDA077-O'HalloranvGalway City Partnershipthe 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 prescribed 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.
In this case the primary facts as contended by the Complainant relied upon are: -
- •The unwritten selection criteria used in the initial “screening out” discriminated against him on the grounds of his age.
- •These criteria were not used for younger candidate.
- •The selective non-recognition and negative weighting of his previous relevant experience was age-discriminatory.
- •Younger candidates in the competition, all of whom, according to the Respondent, were marked on “merit” and not on the post they occupied.
- •None of the Complainant's experience elsewhere in the organisation or external to it had been taken into account by the Supervisor in his assessment.
Court’s Findings
The Complainant submitted that the first stage of the selection process was tainted by discrimination as it entailed unwritten, improper and unpublished assessment criteria in the initial “screening-out” process which he maintained were not used for younger candidates and were used to pre-screen candidates from progressing to the second stage of the selection process. The Complainant clarified for the Court that he was referring to the line Supervisor’s marking of candidates on their performance in their assigned roles.
Candidates were required to complete an application highlighting their suitability for the assignment across a range of competencies. Their application was supported by an assessment conducted by their line Manager. Following which these applications and assessments were then considered by the Selection Board comprising the six assistant Directors of the Respondent along with their annual PMDS ratings. Eligibility criteria included a condition that they must have obtained a rating of ‘3’ or higher in their annual PMDS (Performance Management & Development System) review in the year of application. The Selection Board then made its assessment using the PMDS ratings, the Supervisors’ assessments of candidates and the application forms. The Complainant achieved a consistent rating of ‘4’ in his annual PMDS ratings between 2006 and 2008.
The selection process was governed by Office Notice 11/2009 dated 7thApril 2009 entitled:-
- “Statistician Higher Grade Competition”: Office Notice 11/2009; Briefing for Supervisors on completion of assessments”.
This was available to line Managers and all staff and marked for the attention of all Statisticians seeking applications for the position of Statistician Higher Grade. The filling of these positions was to be based on a detailed competency-based assessment to be completed for all applicants by the first and second Supervisors with applicants being assessed under the competencies listed. It was merit-based criteria with the merit-based decisions made by the Selection Board at Senior Management Committee level having regard to the application form and the line Management assessment provided on each candidate.
The eligibility criteria were set out in the Office Notice along with the competencies candidates for the “merit” positions were expected to demonstrate in their applications. Potential candidates were notified that a competency-based assessment would be conducted on applications by the candidates’ first and second line Supervisors and that the applicants would be provided with a copy of their marking sheet.
The competition was competency-based and instructions were given to candidates that they must show evidence of a list of competencies. The application form stated:-
- “Please provide concise evidence below demonstrating your suitability for assignment to the higher grade with particular reference to the required competencies”.
This was divided into three sections:-
- Current core responsibilities
Specific developments in current role,and
List of some significant achievements in previous role.
This Office Notice advised that the first Supervisor would be provided with a copy of the candidate’s application form solely as an aide memoire and that the Supervisor must discuss the assessment with the candidate giving feedback in relation to the candidate’s work performance for the competencies as well as their potential for assignment to Higher Scale. The second Supervisor (members of the Senior Management Committee and as such on the Selection Board) were required to indicate whether they agreed with the assessment and to include an overall comment. The Office Notice stated that:-
- “In the case of applicants who have changed supervisors within the past 12 months, HRM Section will work with current and past supervisors in relation to the completion of the assessment.”
In the “Comments” box on the Complainant’s application form the Assistant Director General/Director wrote:-
- “[The Complainant] is an enthusiastic and dedicated statistician who has always shown a keen interest in producing good quality results. He has put considerable effort into developing user awareness of the new Material Flow Accounts”.
The Selection Board comments on the Complainant’s application form read:-
- “Good evidence from the assessment form of acceptable solid performance across the range of competencies. However, the application form did not directly address the required set of competencies”.
It is not denied that the Complainant did not refer clearly to the competencies as requested; the Internal Reviewer found his application form was“short and concise”. The Complainant told her that he was not aware that he was expected to present his application form in a way that related each competency to his work experience as the form was not structured, organised or filled out in the format usually used by candidates in competency-based competitions.
The Internal Reviewer in her Report found that:-
“ the application form submitted was not presented in the manner required and the comment made by the consistory board is valid and fair”.
- “given [the Complainant’s] achievements, (migrating the EA from Excel to SAS and publishing a new product the MFA) I felt that the assessment marks awarded were unduly low”.
“The explanation given by the supervisor for the low marks was that the area is a low profile area within the organisation and therefore, despite the achievements, he does not feel that high marks were merited”
….. “the area is not demanding enough”.. ..
”he would not nor could not get the opportunity to show evidence of performing at an above average level in a lot of the competencies, as such a level of performance was not required in the area. The view was expressed that the area was a ‘backwater’”.
The Internal Reviewer’s Report draws attention to the failure by the Complainant’s line Supervisor to discuss the assessment with him.
The Court is satisfied that the criteria for the competition were clearly laid out in Office Notice 11/2009. These criteria were carried out in accordance with the details specified. The Complainant stated that the unwritten selection criteria only came to light when
the competition was over when inan e-mail dated 18thAugust 2010 from the Assistant Director General to the Respondent’s Personnel Officer regarding a query he raised concerning the Complainant’s claim the Assistant Director General stated:
- "A candidate can only be marked on his performance in the role assigned….”
The Court is satisfied that this was clearly specified in Office/Notice 11/2009 and was known to both management and candidates alike. There were no unwritten selection criteria. From the reviews conducted by both the Internal Reviewer and by the CPSA there is no evidence to suggest that younger candidates were not subject to the same criteria. All candidates were assessed in their performance in the role assigned to them and it was only in situations where a candidate changed Supervisors in the previous twelve months that both current and past supervisors would be involved in the completion of the assessment. Therefore, the Court cannot accept the Complainant’s contention that the assessment should have considered the entirety of the Complainant's experience elsewhere in the organisation and external to it as this would have exceeded the criteria being assessed.
The Court is satisfied that the explanation given for the low marks he scored, being attributed to his failure to adequately complete the application form, is a cogent explanation of why he did not score higher in the initial stage of the competition and was not due to unwritten selection criteria.
In this instance the Court is satisfied that the criteria for promotion was based on a competency-based merit assessment system measured against defined competencies established for all candidates and having regard to application forms and line Management assessments.
It is clear that those promoted received a higher rating than that of the Complainant. There is no viable evidence which could indicate that the assessments for successful candidates were in any way tainted by discrimination on the age ground.
No evidence has been presented to indicate that the mere fact that the Complainant was working in what was described as ‘a low profile nature of the area’ was in itself related to his age and therefore the Court does not find that the criteria used for selection were such as to be either directly or indirectly discriminatory.
The Court is inclined to concur with the Internal Reviewer’s conclusion that the ultimate outcome of the competition was the ranking list produced by the Selection Board. The Report found that there was no evidence to suggest that the Complainant was treated in any way differently to any other candidate by the Board and no evidence to suggest that the marks awarded to him were influenced by extraneous factors including his age.
The Court notes that the Internal Reviewer’s Report was critical of the Selection Board’s method of selection on the basis that it was not rigorous enough to correct errors or bias possibly introduced in the earlier phase of the competition and recommended that some element of interaction with the candidates should be introduced into the competition for the future. While not dealing with the issue of alleged age discrimination, the CPSA concluded along the same lines as the Internal Reviewer’s Report and recommended a review of the process to ensure that candidates are provided with a greater opportunity to demonstrate their overall performance in the competencies assessed. The Court notes that the system has since changed to accommodate these recommendations.
Determination
Having regard to all of the surrounding circumstances the Court cannot accept that the Complainant’s failure to attain promotion is a fact from which discrimination on the ground of age could be inferred. Accordingly, he cannot succeed.
It is the determination of the Court that the complaint herein is not well-founded and that the Respondent did not discriminate against the Complainant on the ground of his age. The appeal is disallowed and the Decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th June, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.