The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-056
PARTIES
An Employee
and
An Employer
(Represented by IBEC)
File reference: EE/2013/399
Date of issue: 30 July 2015
HEADNOTES: Employment Equality Acts Sections 6, 8, discrimination of the Grounds of Age
1 DISPUTE
1.1 This dispute concerns a claim by Mr X that he suffered direct Discrimination relating to access to employment by a potential Employer, DP, a specialised Academic & Research Programme, on the Age grounds contrary to Section 8(5) of the Employment Equality Acts
1.2 The complainant referred his claim to the Director of the Equality Tribunal on the 7th of August 2013. On the 24th June 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, 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 and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 30th June 2015.
2 COMPLAINANT’S SUBMISSION
2.1 The complainant applied for the position of CEO in DP in January 2013.
He was not short listed for interview having failed to secure a qualifying score on an alleged neutral point scoring short listing system.
2.2 The Complainant alleges that the short listing system failed to acknowledge that he had held the position of CO for 14 years (1998 -2012) and was in direct contradiction to his CV and other testimony emanating from the DP itself.
The scoring system provide results which were a deliberately false evaluation of his skills, experience and personal qualities.
2.3 The Complainant made numerous requests to the Respondent for further detailed information in relation to the Points/Scoring system. It was alleged that adequate information was not provided in reply by the Respondent.
2.4 The Complainant was aged 64 in January 2013 and in the absence of other evidence alleged that this age factor was the reason for the discrimination against him.
2.5 Extensive copies of correspondence between the Complainant and the Respondent during 2012 and prior to the advertisement of the position in question were provided.
3 RESPONDENT'S SUBMISSION
3.1 A vacancy for the position of CEO of the DP arose in mid-2012 and the position was advertised in January 2013.
3.2 The Respondent provided detailed information in relation to the circumstances that had led to the availability of this position. The details were in the main concerned with issues surrounding the ending of the Complainant’s employment as the former CEO with DP in May 2012.
3.3 As an aside the Employment Appeals Tribunal considered the resignation and found against the Complainant (UD1604/2014) in a claim of Constructive dismissal.
3.4 A formal methodology was adopted by the Respondent to govern the Selection and Recruitment process. The number of applications received necessitated a short listing of candidates for eventual interview. In order to fairly assess at the short listing stage all the candidates, it was decided that the most equitable approach to short listing was on the sole basis of the capacity of each applicant to demonstrate in their cover letter and supplied CV that they had the skills, qualifications and experience necessary for the role.
3.5 A detailed scoring system was devised – a Recruitment Matrix would be the common term. It comprised four principal sections (Essential Attributes, Required Experience, Knowledge and Skills and Personal Qualities.) Each section was broken down into a number of subsections. The scoring system was then weighted to reflect different relative importance to the position of specific areas and sub sets of the elements.
3.6 An interview and short listing panel was selected, met on the 6th February 2013, to short list an interview list from the 15 applications received. All candidates were assigned a numerical score. It was agreed by the panel to call the top 5 applicants for interview on the 25th February 2013.
3.7 The interview and short listing Panel comprised the Chairperson of the Programme, two other Directors and a suitably qualified, at senior level in HR, external member. All Panel members were senior academic professionals experienced in the area in question. Additionally the Respondent was cognisant of the need for age and gender balance on the panel – it comprised two ladies and two gentlemen and had a reasonable age spread.
4: Conclusions of the Equality Officer
4:1 A very considerable body of written and oral evidence was presented to the Equality Officer. This evidence largely dealt with the individual elements of the Marking System, used at the short listing for interview stage.
4:2 I had to take the view that this was a claim of Direct Discrimination on Age grounds and could not be made into anything else. The Equality Officer was not charged with giving a supervisory overview of the Recruitment Process and especially the marking/ weighting of individual elements in the process save where any of these elements could be deemed to be discriminatory on Age grounds.
4.3 I was cognisant of the well know precedents (cited by the parties) governing the Burden of Proof in Discrimination cases (Section 85A (1) of the Equality Act). The Complainant has to satisfactorily establish, on the balance of probabilities, the primary facts they are relying on to raises a presumption of unlawful discrimination or a prima facie case of discrimination.
The cases of Southern Health Board and Dr Teresa Mitchell (DEE011) and ICON Clinical research and Tsourova (EDA 071) are pertinent here.
4.4 In relation to the specific area of Recruitment processes I was also conscious of the body of Labour Court precedents in this area. The Court has always been clear of the importance, of separating what are essentially competent professionally undertaken recruitment decisions by employers from Equality issues.
The Court in the case of Waterford Institute of Technology v Kathleen Moore-Walsh (EDA 042) stated that the Complainant had contended that her qualifications and experience were not given due weight – however it was the view of the Court that
“On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. Where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board.
On the evidence adduced the complainant has not established to the satisfaction of the Court that the marks awarded by the interview board as between her and the successful candidate were irrational or unfair. Moreover, the Court is satisfied that the interview board were entitled to take the view that the successful candidate’s qualifications were superior to the acknowledged excellent qualifications of the complainant. Finally, it has not been established as a matter of probability that the interview process was carried out unprofessionally in the manner alleged by the complainant or at all.
Accordingly, the complainant has failed to establish a prima facie case of discrimination and her claim cannot succeed.”
4:5 The issue of short listing CVs for forwarding to a full Interview stage was considered in Concern v Martin EDA0518.
“With regard to the selection process it must be noted that the Respondent received a particularly large number of applications for the post and not all applicants could be interviewed. It was thus necessary to set up a process of short-listing. Two experienced human resources specialists carried out this process. In previous cases the Court has held that in the absence of unfairness in the selection process, or manifest irrationality in the result, it will not seek to undertake its own assessment of candidates or substitute its views on their relative merits for those arrived at by the designated selectors (see most recently Determination No. 0416Robert Shethean v Director of Public Prosecutions). Unlike other cases which involved the outcome of interviews, the impugned process in this case was conducted solely by reference to the CVs of candidates.”
4:6 In the case at hand the shortlisting process was carried out by three senior Academics and a senior head of HR from a major cultural Institution. The reliance on CVs and Letters of Application was based on the need to ensure as much objectivity as possible for all candidates bearing in mind that a number of the applicants were known personally to the Panel. Three of the Panel gave oral evidence to the Tribunal on this point. I found their evidence to be credible.
As well as the senior qualifications of the Panel Members the design and internal scoring mechanics of the Shortlisting Matrix itself was a competent, professional piece of work and would bear comparison with general Recruitment norms. The process was carried out to a professional standard.
4:7 The Complainant felt that the efforts to effectively “Anonymise” the Short Listing process by exclusive reference to the Letter of Application and CV did not favour his application in so far as he felt that his track record as the Post holder for 14 years was pertinent and would not be given due weight. However the Respondent pointed out the Complainant had ended his employment a year previously and it was their prerogative to re advertise the position on, if needs be, somewhat different criteria to the post formerly held by the Complainant. The Respondent maintained that the requirements of the position had evolved since the Complainant held the position and the recruitment process had to reflect the new situation. This point was contested by the Complainant who alleged that the changes were largely cosmetic and designed to disadvantage his application.
However in this revised situation the CV and Application Letter process was thought to be, by the Respondent, the fairest method to all applicants.
4:8 A lot of the exchanges between the Respondent and the Complainant at the Oral hearing centred on technical matters and in particular the relative merits of Academic Degrees, research and publications completed. As the weighting system placed emphasis on the level of Academic qualification achieved by the applicant it was of particular relevance to the numerical end result of the short listing exercise. This weighting system for qualifications was hardly unusual in a selection process for what was essentially an Academic appointment. It was not the function of the Equality Officer to evaluate the relative equivalence of one Academic qualification to another, provided no evidence of discrimination was evident in the process.
4:9 In relation to the other elements of the Shortlisting Matrix, (in total it contained 17 elements,) extensive evidence was given both orally and in Written submissions. As stated before and referenced to Labour Court precedents it is not the function of the Equality officer to pass comment on how these elements were scored among the candidates as long as no prima facia evidence of Discrimination is evident. Evidence was presented showing the scoring of the top six candidates.
From both the lengthy written submissions and extensive oral evidence I could not find any substantive evidence to support a claim of age related bias or discrimination.
4:10 Age information was not sought from the applicants as part of the Recruitment process. Nevertheless the approximate age range of the applicants in the recollection of the Panel and where the information was available from written applications, ranged from the early 20s to the 6O + age group. The applicants short listed for Interview were considered to be from the late 30s to the mid-50s.
Equally the age/gender profile of the Interview/Short Listing Panel was not such as to cause any concern.
4:11 The extensive written correspondence provided in evidence by the Complainant dealt mainly with events prior to the Recruitment Competition. These matters were addressed by the EAT in (UD1604/2014). They set the context to the creating of the vacancy for CEO but I did not find they substantiated a prima facia Age discrimination case.
4:12 Correspondence post the interviews and shortlisting, while not actually comprising a formal Appeal mechanism to the short listing decision, was also presented. The situation at the time was complicated by the simultaneous running of the EAT case but I was satisfied that the Respondent dealt adequately with this aspect. Reference was made to correspondence received (which was shown to the Equality Officer) from the Data Protection Commission in relation to their satisfaction with information being supplied.
4:13 Reference was made to the fact that one of the five short listed candidates, at very short notice, did not attend for interview and as a result only four candidates were interviewed. To remain at the four qualifying candidates and not go back to the Short Listing score sheet for the next highest candidate, in this case the Complainant, technically below the qualifying mark, was the prerogative of the Respondent employer.
4:14 In conclusion I have to find that there was, despite very extensive submissions by both parties, no substantive prima facia evidence of any discrimination on the grounds of age provided by the Complainant.
5: DECISION OF THE EQUALITY OFFICER
Having investigated the above Complainants, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on age grounds in the selection and recruitment process contrary to section 8(5) of the Employment Equality Act.
_____________
Michael McEntee
Equality Officer
30 July 2015