EQUALITY OFFICER'S DECISION NO: DEC-E/2016/127
PARTIES
Ms. Ann O’Leary
Vs
The Department of Arts, Heritage and the Gaeltacht
FILE NO: et-158762-ee-15
DATE OF ISSUE: 16th of September, 2016
1. Dispute
This dispute involves a claim by the complainant that she was discriminated against by the respondent on the grounds of age, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to to a competition for promotion to Higher Executive Officer in March 2015 in which the complainant was unsuccessful at the preliminary interview stage.
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 18th of August, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 11th of April, 2016 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 5th of May 2016. Final correspondence in relation to this complaint was received on the 26th of May, 2016.
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
she was discriminated against, on grounds of age when she was unsuccessful at a preliminary interview for promotion from Executive Officer (EO) to Higher Executive Officer (HEO) in March 2015,
she has worked as an EO in the respondent’s Department since September 2008 and prior to that had worked in Revenue for over 20 years, 14 of which were spent in a management role as a Higher Tax Officer,
she is one of the most experienced EO’s in the Department and has regularly undertaken work appropriate to the HEO grade,
two other EO’s in her division who are aged between 40 and 44 and who had less experience than the complainant progressed to the final interview stage,
eleven Killarney based individuals attended for preliminary interviews, seven were under age 45 and four were over 50, six progressed from the preliminary interview and all six were under age 45,
none of the Killarney based candidates who were over 50 progressed from the preliminary interview stage,
three of the four unsuccessful candidates were over 50 and had previously worked in Revenue managing staff and units,
the Killarney based individuals who progressed from the preliminary interview stage did not have the same relevant experience as the complainant,
interview training was not provided to candidates prior to the competition,
three panels were used to interview candidates 1 panel only put through 9 candidates while the other 2 panels put through 10 candidates each.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant is employed as an Executive Officer (EO) in the Department of Arts Heritage and the Gaeltacht since 2008,
in February/March 2015 the respondent invited applications for a competition for promotion to Higher Executive Officer (HEO) the first stage of which was a preliminary interview to select a reduced number of candidates for the final interview,
the preliminary interview was a competency based interview and candidates were asked to demonstrate the competency requirement under the following headings
Organisational Awareness
Communicating and Influencing
Managing and Developing People
the complainant attended a preliminary interview on 13th of March 2015,
the complainant was not successful at the preliminary stage and did not progress further,
the respondent refutes the claim that the complainant was discriminated against on the age ground,
age was never asked for, nor was it considered in any aspect of the competition,
of the 55 candidates who applied 29 were shortlisted,
the claimant was unsuccessful as her scores, under the three competencies, were less than those achieved by the successful candidates.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to a competition for promotion to Higher Executive Officer in which the complainant was unsuccessful at the preliminary interview stage.
5.2 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.
5.3 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 she 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.
5.4 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.
5.5 The Tribunal/Commission 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.
5.6 Section 6(1) of the Employment Equality Acts, 1998 to 2015 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)(f) of the Acts defines the discriminatory ground of age as follows – “as between any 2 persons, ... that they are of different ages,..".
5.7 I must now assess whether the complainant has succeeded in establishing a prima facie case that she was unsuccessful at the preliminary interview stage because of her age. It is agreedbetween the parties that the complainant did not get through the preliminary interview stage. The complainant submits that this was due to her age. The respondent advised the hearing that the complainant was not successful as she did not score as highly at the interview as successful candidates. The complainant when questioned stated that the interview panel had not made any reference to her age and had not asked any questions or made any comment in relation to her age. The complainant advised the hearing that it was only when she discovered that two other candidates from the Killarney office who were also over 50 were also unsuccessful at the preliminary interview stage, that she concluded that the reason for their lack of success was due to their age. The complainant did not make any claim that any aspect of the interview or application form referred to age. In addition the respondent advised the hearing that it had not requested any information regarding the age of applicants. The respondent added that it has been a number of years since they have stopped asking for candidate’s dates of birth on application forms.
5.8 In considering this submission I am cognisant of the finding of the Labour Court in EDA 0416 Director of Public Prosecutions and Robert Sheehan which found that
“In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or the age ground. As was pointed out by Neill LJ inKing v Great Britain China Centre [1992] I.C.R. 516 such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found by the Court. “
5.9 This dictum was later adopted by the High Court in Davis v Dublin Institute of Technology High Court, Unreported Quirke J 23rd June 2000. In addition, the rationale of this approach was explained in Citibank v Massinde Ntoko[2004] 15 E.L.R. 116 where the Court stated
"This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof".
5.10 The Labour Court in EDA 0416 Director of Public Prosecutions and Robert Sheehan went on to state that the complainant must establish “a factual matrix from which the Court may properly draw an inference that discrimination has occurred”. It also found that there was “no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies”. However, in O’Halloran v Galway City Partnership EDA077, the Labour Court 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.
5.11 The complainant in the present case told the hearing that she was more experienced than a number of the successful candidates. The complainant in advancing this told the hearing that she had worked as an Executive Officer in her current Division within the respondent’s Department since September 2008 having moved from the Office of the Revenue Commissioners under Decentralisation. The complainant stated that she had prior to this worked in Revenue for over 20 years 14 of which were in a management role of Higher Tax Officer. The complainant at the hearing gave examples of the type of work and projects on which she had worked during her career.
5.12 The complainant stated that other less experienced candidates had succeeded at the preliminary interview stage where the complainant had failed. The complainant in advancing this aspect of her claim cited examples of candidates who had been successful at the preliminary interview stage where she had failed but whom the complainant submitted did not have as much experience as the complainant due to the length of time they had worked in the Executive Officer grade. The respondent advised the hearing that candidates at the pre-liminary interview stage were assessed in accordance with the competencies and marks were awarded based on pre-determined criteria. The respondent also stated that interview notes were taken in respect of each of candidates and that marks were then awarded for each competency. The respondent provided the complainant’s score sheet and notes taken at interview in respect of the complainant. The respondent advised the hearing that all candidates were offered feedback following the interview process but that the complainant chose not to avail of the feedback opportunity.
5.13 The respondent advised the hearing that the complainant was unsuccessful as she had not scored as highly as other successful candidates. The complainant at the hearing sought an explanation as to the reason she did not score higher at the interview. The respondent at the hearing referred to the interview notes and scores awarded to the complainant at the interview. The respondent advised the hearing that the complainant’s concerns could have been more appropriately addressed in the feedback session offered after the interview process given that the interview had taken place in March 2015 but stated that the complainant had at the time chosen not to avail of the offer of feedback following the interview. The complainant told the hearing that she saw no point in asking for feedback from people who had given her such low scores.
5.14 The respondent prior to the hearing provided a breakdown of successful and unsuccessful candidates by age group. The complainant asserts that she was unsuccessful due to the fact that she was over 50 and that two of her colleagues were also unsuccessful for that reason.
5.15 In examining the breakdown of successful candidates provided by the respondent it is clear that 55 candidates applied from which 29 were successful following the preliminary interview stage. Of the 55 who applied 11 or 20% were over 50. Of the 11 people in the over 50 age group who applied 4 were successful. This represents 36% of the over 50 age group who were successful. This does not substantiate a claim that the complainant was unsuccessful due to her being over 50 as others in this age group were successful.
5.16 The respondent advised the hearing that the complainant had achieved a score of 185 marks overall. The complainant at the hearing raised an issued that there had been a typo in one of the documents provided in respect of the breakdown of marks for all candidates successful and unsuccessful who were interviewed by her Panel. The document in question indicated that the top score for unsuccessful candidates in respect of one of the competencies was 70 when the complainant, who was one of the unsuccessful candidates interviewed by that panel, had scored 75 in that competency. The respondent stated that this was a typo and that a mistake had been made in transcribing the results to this document. This document was a breakdown of all marks provided to candidates relative to other candidates and did not affect the marks awarded to or previously notified to the complainant.
5.17 The respondent advised the hearing that the complainant along with a number of other unsuccessful candidates had scored total marks of 185 in the preliminary interview. The respondent advised the hearing that a candidate who had scored 190 on the same panel was also unsuccessful as this was not as high a score as others who had got through the preliminary interview stage.
5.18 The complainant in her submission raised an issue as to why her panel (Panel B) had only put through 9 candidates while the other two panels put through 10 candidates. The respondent advised the hearing that each panel was instructed to put forward 9 to 11 candidates subject to the emergence of a ‘break’ in the group being assessed. The respondent told the hearing that Panel B only put through nine candidates as after candidate number nine, there was a cluster of candidates whose scores were very close or relatively the same and so it was not possible to put them all through. Thus a clear break had emerged between the successful candidates and the others in the group. The respondent provided details of the scores awarded to the complainant and to all unsuccessful candidates, and it is clear from these scores that there were other unsuccessful candidates who scored higher than the complainant. Thus the complainant was not the closest unsuccessful candidate in terms of scores attained and would not have succeeded even if an additional person was put through by her panel (Panel B). It is also clear from the details provided by the respondent that all 29 successful candidates had attained higher scores than the complainant irrespective of which panel they were interviewed by. Thus it is not the case that the complainant’s scores were not high enough relative to others interviewed by her panel but that her score was not high enough relative to all successful candidates.
5.19 In O’Halloran v Galway City Partnership EDA077, (also referenced at pgh above) the Labour Court stated:
“Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or criteria which is 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 proscribed 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.”
5.20 The Labour Court has held that this general principle is equally applicable where other discriminatory grounds are relied upon. However in applying that general 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 candidates. In addition the qualifications or criteria which are to be expected of candidates and the evaluation of candidates against those criteria are a matter for the employer in each case.
5. 21 The complainant in the present case has submitted that she has more experience than the successful candidates but appears to be relying to a large extent on the fact that she was employed by the respondent as an Executive Officer (EO) for 7 years and prior to that had worked in Revenue for 20 years. The complainant told the hearing that she is one of the most experienced EO’s in the Department and stated that she had been doing HEO work on a regular basis and working directly to an Assistant Principal (AP) in many cases. The complainant told the hearing that she was happy with her performance at the preliminary interview stage and was surprised to hear that she had been unsuccessful.
5. 22 The respondent in the present case has outlined the procedure followed at the pre-liminary interview stage and has provided evidence of this procedure along with interview notes as well as a breakdown of the scores achieved by all candidates successful and unsuccessful.
5.23 The complainant at the hearing sought information as to whether she should have used different examples or examples from outside of the civil service to illustrate her competencies. The respondent indicated that this level of detail could have been addressed in a feedback session after the interview had the complainant opted for feedback following the interview. The complainant at the hearing stated that she had not been offered interview training prior to the competition. The respondent stated that this was the case but added that candidates in general are not offered interview training in advance of competitions save in circumstances where an individual has specifically requested interview training as part of their personal development plan in conjunction with the Performance Management process.
5.24 Having considered the submissions made and the totality of the evidence adduced in relation to these matters I am not satisfied that facts have been established of sufficient significance to raise an inference of discrimination. The Complainant submitted that the reason she was not successful at the preliminary interview stage was due to her age, but has not adduced evidence to substantiate this claim. In addition, the fact that other candidates in the over 50’s age group were successful at the preliminary interview stage would support the respondent’s submission that it was not influenced by the candidate’s ages.
5.25 I am satisfied from the totality of the evidence adduced that the Complainant has not demonstrated that she is better qualified or that she met the pre-determined criteria to a greater degree than the successful candidates and hence the I cannot find facts from which it could be possible to raise a presumption that the pre-liminary interview process for the post of Higher Executive Officer,was tainted by discrimination. Thus I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant’s failure to get through the pre-liminary interview stage of the competition was not in any way related to her age.
6. Decision of the Equality Officer
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2015 I issue the following decision. I find that
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 promotion to Higher Executive Officer in March 2015.
___________________
Orla Jones
Adjudicator/Equality Officer
16 September, 2016