EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-006
PARTIES
An employee
AND
An Educational Institution
(Represented by McDowell Purcell Solicitors)
File reference: EE/2013/009
Date of issue: January 2016
HEADNOTES: Employment Equality Acts Sections 6, 8, Disability Discrimination and Non selection for a position.
1: Background
This dispute concerns a claim by Mr. GM that he was discriminated against in a job selection process, on the grounds of Disability, by Educational Institution, UC, contrary to Section 6 and 8 of the Equality Act.
The Complainant referred a claim to the Director of the Equality Tribunal on 14th January 2013, under the Employment Equality Acts. On the 15th September 2015, in accordance with his powers under section 75 of the Employment Equality 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 (General) 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 Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 21st September 2015.
2: Preliminary legal Arguments:
Time frames / Admissibility of Claim
2.1: The Respondent pointed out that the Claim was out of time – the argument hinged on a date of notification of an unsuccessful short listing – the 19th June 2012 - giving a six month deadline of the 18th December 2012. The complaint form was lodged on the 10th January 2013. The Complainant maintained that the start date for the Complaint should have been the 17th September 2012 when Score Card details were received by him.
Section 77(5) of the Employment Equality Acts, 1998 to 2011 states -
“(a) Subject to paragraph (b), 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 of the discrimination or victimisation to which case relates or, as the case may be, the date of its most recent occurrence
(b)On application by a complainant the Director 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 a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
In this case the date of “occurrence of the discrimination” is when the complainant was notified that he had not been shortlisted: 19 June 2012. This is just over three weeks outside the 6 month’s timeline. At the hearing the complainant stated that he delayed submitting this claim until after he had received the score card details on 17 September 2012. He then referred his claim on 10 January 2013. This is outside the six months timeline but within twelve months. The complainant took steps to engage with the respondent in asking for the score card results of the competition he applied for. I find that this delay amounts to “reasonable cause” in accordance with section 77 (5) (b) of the Employment Equality Acts and I extend the period to 12 months. I conclude that the respondent is not prejudiced by this extension.
According the Claim was allowed to proceed.
3: Complainant’s Submission
3:1 The Complainant applied for an advertised position as an Assistant Lecturer in the Anthropology Department of the Respondent Institution in June 2012.
He was not short listed for interview.
As a former employee of the College and the Department in question he was surprised and sought information under the Freedom of information Act as to the reasons why.
A reply from the Respondent on the 17th September 2012 indicated, he maintained, that he had
1) Received very little credit for previous experience:
2) Was awarded a low score for his letter of recommendation
3) Was not deemed to be compatible with the Department’s teaching needs.
3:2 The Complainant pointed to his holding of a PhD and his academic teaching experience in the UK and Ireland. He particularly queried the selection criterion “Fit with Departmental needs”. This he felt was an arbitrary measure used to manipulate the outcome of the short listing to his disadvantage.
3:3: The Complaint failed to understand why he was not shortlisted for final interview and concluded that the explanation lay in his being a person with a Disability. His Disability was he held, widely known in the Department and influenced his application negatively.
4: Respondents Submission.
4:1 12 applications were received for the vacant position in the Dept. of Anthropology. . In keeping with detailed procedures a short listing panel was formed and 5 applicants were selected to proceed to interview.
Extensive details were supplied by the Respondent to the Equality Officer in relation to Selection Factors used and the methodology adopted.
4:2 The Respondent strongly maintained that at no stage in the Selection process was any member of the selection Panel aware that the Complainant had a disability.
4:3 Extensive evidence was provided in relation to Scoring of Factors in the Short listing process.
4:4 The commitment of the Institution, a major University, to all forms of Equality was demonstrated by evidence of Training of Staff and in particular the training of all staff involved in any forms of recruitment.
Accordingly the Claim must be disallowed.
5: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5:1 It is well stated law and precedent that it is not the function of the Equality Officer or the Labour Court on Appeal to evaluate the relative merits or demerits of candidates in a selection process which is deemed to be fair and untainted by any discriminatory features either manifest or latent.
5:2 In the case in question the Respondent is a major public University with extensive well tried recruitment procedures and systems. Details were supplied to the Equality Officer.
The staff engaged in the Administration of the Recruitment process are experienced and professional Human Resource staff. The head of HR gave convincing oral evidence to the Equality Officer in this regard.
The Respondent has significant and well publicised Equality Policies. Again copies were supplied in evidence.
5:3 A key issue the Equality Officer inquired into at length during the Oral hearing was the Shortlisting process. The Chairman of the Shortlisting Committee gave direct oral evidence to the effect that he was unaware of the Complainant having any disability. The Complainant was personally known to him and he could be expected, in a commonly accepted sense, to know of any disability.
The Chairman was a Senior Academic with previous experience in recruitment processes.
He is trained in Equalitypractices and Recruitment procedures. The Equality Officer was impressed by his evidence. No evidence of any discrimination on disability grounds could be found by the Equality Officer.
5:4 The Respondent and their witnesses gave evidence that they were completely unaware of any Disability being suffered by the Complainant until the production of the Equality Tribunal claim form in January 2013. The proceedings were marked by a lack of any medical evidence to support the Disability Grounds.
5:5 In summary the Equality Officer had to take the view that this was a claim of Direct Discrimination on Disability 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 Disability grounds.
5:6 The Equality Officer 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 raise 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.
5:7 In relation to the specific area of Recruitment processes the Equality Officer 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.”
5:8 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).”
5:9 In the case at hand the shortlisting process was carried out by three senior Academics all trained in Equality and Recruitment.
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 the best recruitment norms. The process was carried out to a high professional standard.
5:10 In conclusion I cannot find the required grounds of a Prima Facie case, as required by Section 85 (a) of the Equality Acts, for a claim of Discrimination based on a Disability Ground.
6: DECISION
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.
I have investigated the above complaints and make the following decisions in accordance
with Section 79 of the Acts that:
Ø The Complainant has not succeeded in establishing a claim of discrimination on Disability Grounds and the claim fails.
__________________
Michael McEntee
Equality Officer
19th January 2016