DEC-E2016-038

EQUALITY OFFICER'S DECISION NO: DEC-E/2016/038

PARTIES

Mr. Michael Grange

Vs

The Public Appointments Service

(Represented by the Office of the Chief State Solicitor’s)

FILE NO: EE/EE/2012/567

DATE OF ISSUE: 29th of February, 2016

1. Dispute

This dispute involves a claim by Mr Michael Grange that he was discriminated against by the Public Appointments Service on the grounds of age and gender, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to getting a job.

2. Background

2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 5th of November, 2012.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 28th January, 2015 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 20th of November, 2015. Final correspondence in relation to this complaint was received on the 15th of December, 2015.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

3. Summary of complainant’s case

3.1 The complainant submits

that he was discriminated against, on grounds of age and gender when the respondent failed to shortlist him for interview following his application for the post of Administrative Officer 2012 (Economics),

that he was discriminated against, on grounds of age and gender when the respondent failed to shortlist him for interview following his application for the post of Administrative Officer 2012 (Human Resources),

disputes the respondent’s contention that he did not have a suitable relevant qualification for the post of AO (Economics),

that he should have been successful in the AO (Economics) competition due to the fact that he had a Business Studies degree within which he had taken the subject Irish Economics as a subject in his final BBS,

disputes the respondent’s contention that he did not have a suitable relevant qualification or experience for the post of AO (Human Resources),

that he should have been successful in the AO (Human Resources) competition due to the fact that he had specialised in Human Resources in the final two years of his Business Studies degree in addition to having a post-graduate qualification as a Barrister,

that the respondent was in fact seeking ‘new blood’ in this competition and that he did not meet this criteria due to his age.

4. Summary of Respondent’s case

4.1 The respondent submits that

the complainant was not selected for interview for the post of AO (Economics) following a short-listing process which took place on 4th of April, 2012. It submits that this aspect of the claim is thus out of time,

the complainant was not selected for interview for the post of AO (Human Resources) following a short-listing process (by a different panel) which took place on the 17th and the 28th of May, 2012,

the age and gender of applicants did not in any way influence the shortlisting process of either panel,

a breakdown of successful and unsuccessful applicants provided to the complainant in respect of the AO (Economics) competition indicates that

· a greater number of male candidates were shortlisted than female candidates, and that

· candidates above and below the age of 45 were shortlisted,

a breakdown of successful and unsuccessful applicants provided to the complainant in respect of the AO (Human Resources) competition indicates that

· of the ten successful candidates one who was older than the complainant was appointed,

the failure of the complainant to be shortlisted for these posts have been the subject of internal informal and internal formal reviews and of a review by the Commission for Public Service appointments all of which upheld the procedures of the Shortlisting Board,

the report of the Commission was then the subject of High Court Judicial Review which found the complainant’s contentions in respect of the Commission to be without merit.

5. Preliminary Jurisdictional Issue Time Limits

5.1 The respondent submits that the complaint in relation to the AO (Economics) competition is out of time as it was not submitted within six months of the last date of alleged discrimination. The complaint form submitted by the complainant is dated the 5th of November, 2012.

5.2 Section 77(5) of the Acts provides as follows:

“(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

5.3 It is submitted that the last date of discrimination is the date on which the complainant was notified that his application was not successful and that he had not been shortlisted for interview. The complainant received this notification on the 12th of April, 2012, this would mean that the last date by which the complainant could submit his complaint was the 11th of October, 2012 in order for the complaint to be considered to fall within the 6 months. The complainant submitted his complaint to the Tribunal on the 5th of November, 2012. Thus the complaint was submitted almost a month outside of the six month’s time limit.

5.4 Section 77(5)(b) of the Employment Equality Acts 1998 to 2011 provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.

Section 77 (5) (b) states:

“On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

5.5 In interpreting this in the instant case, I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows:

"The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".

5.6 I am also taking into account the Labour Court decision in the case of Elephant Haulage Ltd v Mindaugas Juska EET082 where the Court reiterated its view (expressed for example in the case of Cementation Skanska and a Worker (WTC/03/44 Determination No. 0426)), albeit under different legislation (Organisation of Working Time Act) that "That in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd." In this regard the Court held that there must be a causal link between the circumstances cited and the delay and that the claimant should satisfy the Court, as a matter of probability that had those circumstances not been present he would have initiated the claim in time. The Labour Court went on to state that the "length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time."

5.7 In this case the complaint was referred almost one month outside of the time limit. The complainant in his application for an extension of this time limit has stated that the delay was due to human mistake and/or omission. He also stated that he was aware of the time limits and that he had even mentioned it in an email to the CPSA.

5.8 I find that the reasons advanced by the complainant for his failure to submit his complaint within the time limit do not amount to ‘reasonable cause’ and that he has not shown reasons which both explain the delay and afford an excuse for the delay. Accordingly, I am satisfied that the complainant has not established ‘reasonable cause’ for the delay in referring his complaint. I, therefore, am not empowered to direct an extension of time in which to refer a complaint to twelve months in this case.　 As the claim in relation to Administrative Officer (Economics) was made outside of the six months time limit, I find that it is out of time in accordance with section 77 (5) of the Employment Equality Acts.

6. Findings and Conclusions of the Equality Officer

6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age and gender, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to getting a job, when it failed to shortlist him for the position of Administrative Officer (Human Resources). In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of both parties at the Hearing.

6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A:

" provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

6.3 In Madarassy v Nomura International plc,[2007] IRLR 246 the Court of Appeal for England and Wales considered how a Court or Tribunal should approach the questions posed by the corresponding provision of UK legislation on the burden of proof. In a judgment concurred with by Laws and Maurice Kay LJJ., Mummery LJ held that in employment discrimination cases the law requires that a Tribunal must first examine the evidence to determine whether the action complained of by the employee would in the absence of an adequate explanation be unlawful discrimination. If the Tribunal makes that finding then the burden of proof shifts to the employer to disprove the allegation of unlawful discrimination.

6.4 The Tribunal and the Labour Court have consistently held that it is not the responsibility of the Tribunal to decide who was the most meritorious candidate for a position rather it is for the Tribunal to determine whether the Complainant was discriminated against on any of the grounds outlined in the Acts.

6.5 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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 subsection (2)…..” Section 6(2)(a) and (f) of the Acts defines the discriminatory grounds of gender and age as follows – “as between any 2 persons, ...

(a) that one is a woman and the other is a man,.." , and

(f) that they are of different ages,..".

6.6 I must now assess whether the complainant has succeeded in establishing a prima facie case that he was not short listed for interview for the post of Administrative Officer (Human Resources)because of his gender and/or age. It is agreedbetween the parties that the complainant did not get through the first stage of the short listing procedure. The complainant submits that this was due to his age and gender and that the successful candidates were skewed in favour of those under the age bracket of 45 years and over. The respondent advised the hearing that two individuals (out of the eight who applied) of the age group 45 and over had been shortlisted in the 2012 competition the subject of the current complaint and that one of those had been among the 10 who were successful at the interview stage of that competition.

6.7 The complainant advised the hearing that he had proof that the respondent in holding this competition was seeking ‘new blood’ which the complainant submits is indicative that age was a factor in the selection process. The complainant in advancing this claim produced a copy of an email issued to PAS in August 2013 in which a reference was made to the 2013 Administrative Officer Competition being designed to bring ‘new blood and skill sets” into the civil service. The respondent in reply to this pointed out that this related to a 2013 Administrative Officer competition and not to the 2012 competition which is the subject matter of this complaint. In addition, the respondent pointed out that ‘new blood’ was not the same as ‘young blood’ and that such a reference was not indicative of any discrimination on the grounds of age. The respondent went on to state that the 2012 and 2013 Administrative Officer competitions were the first recruitment competitions which had been held in a number of years since the moratorium on staff recruitment and stated that the competition in question was being welcomed as an opportunity for new entrants and new skills.

6.8 The respondent submits that the complainant was not short listed due to the fact that he did not meet the qualifications requirement for the post. The respondent advised the hearing that the qualifications required for the post was a Level 8 on the National Framework of Qualifications in Human Resources or a relevant qualification. The respondent stated that the complainant’s qualification which was a Business degree with elements of Human Resources was not considered to meet the qualifications requirement of a degree in Human Resources a relevant degree for the post of Administrative Officer (Human Resources).

6.9 The complainant in response to this stated that he should have been successful in the AO (Human Resources) competition due to the fact that he had specialised in Human Resources in the final two years of his Business Studies degree in addition to having a post-graduate qualification as a Barrister. The complainant’s Business Studies Degree was made up of the following final year subjects Personnel, Industrial Relations, Advance Management, Business Policy, Irish Economics and a Thesis on the Pensions Act. The complainant advised the hearing that it was in fact his age and gender which were the real reasons for his failure to be shortlisted.

6.10 The Labour Court in O’Halloran v Galway City Partnership EDA077, found that, an inference of discrimination can arise where “a better qualified candidate is passed over in favour of a less qualified candidate” (see Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ) or where there is an unexplained procedural unfairness in the selection process. The complainant in that case submitted that his qualifications for the post in question were demonstrably superior to those of the successful candidate and that there was a lack of transparency and a general unfairness in the selection process.

6.11 However in applying that principle the Court has held that it is for the Complainant to prove as a fact that he or she was better qualified relative to the successful candidate/s.

6.12 The complainant in the present case has not submitted any evidence that he is better qualified relative to the successful candidatesor that he has met the criteria for the selection for interview to a greater degree than the successful candidates and in fact the evidence adduced has shown that the complainant was deemed not to have reached the qualifications required for the post.

6.13 The respondent advised the hearing that age and gender played no part in the decision made by the Short listing Boards and stated that all members of the shortlisting Board were briefed in relation to Equality matters which covered age and gender equality, prior to the process, and were well aware of their obligations in this regard. The respondent also advised the hearing that two of the candidates who got through the shortlisting stage were from the 45 and over age bracket and one of those was in fact older than the complainant. In addition the respondent advised the hearing that of the ten successful candidate’s one of those successful at the interview stage was in fact older than the complainant. The complainant at the hearing stated that this one person over the age of 45 who was successful at interview was but a ‘token’. The respondent at the hearing provided details of the age profiles of those candidates who had applied for the post and who were successful at the shortlisting stage. It is apparent from the details provided that of those who submitted supplementary applications in the age group of 45 and over, 25% were shortlisted.

6.14 The Complainant in this case has submitted that the reason he was not short listed for interview was due to his age. Having considered the submissions made and the totality of the evidence adduced I am satisfied that facts have not been established of sufficient significance to raise an inference of discrimination on the ground of age. In addition, the fact that two of the candidates who got through the shortlisting stage were from the 45 and over age bracket and one of those was in fact older than the complainant would support the submission that the respondent did not discriminate against the complainant due to his age and was not seeking to exclude candidates in the age bracket of 45 and over as was advanced by the complainant. Thus I am satisfied from the totality of the evidence adduced in relation to this matter that the failure to short list the complainant for interview was not in any way related to his age.

6.15 Gender

6.15.1 The complainant in advancing his claim on the gender grounds adduced no evidence to substantiate this aspect of his claim other than to state that he was unsuccessful due to the fact that he is male. In this regard I refer back to the Labour Court decision in Melbury v. Valpeters EDA/0917 cited at paragraph 5.2 above where it states that

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

6.15.2 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the failure to short list the complainant for interview was not in any way related to his gender.

7. Decision of the Equality Officer

7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2008 I issue the following decision. I find that

(i) the respondent did not discriminate against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to the competition for the post of Administrative Officer (Human Resources)

(ii) the respondent did not discriminate against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to the competition for the post of Administrative Officer (Human Resources)

(iii) the claim in relation to the Administrative Officer (Economics) competition 2012 is out of time in accordance with Section 77(5) of the Acts.

___________________

Orla Jones

Adjudication Officer/Equality Officer

29th of February, 2016