EQUALITY OFFICER'S DECISION NO: DEC-E/2016/133
PARTIES
Mr. John Montgomery
(Represented by the Public Service Executive Union)
Vs
The Department of Arts, Heritage and the Gaeltacht
FILE NO: et-159175-ee-15
DATE OF ISSUE: 22nd of September, 2016
1. Dispute
This dispute involves a claim by the complainant that he 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 getting a promotion/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 7th of September, 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 28th of June, 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
he was discriminated against, on grounds of age when he was unsuccessful at a preliminary interview for promotion from Executive Officer (EO) to Higher Executive Officer (HEO) in March 2015,
he has worked as an EO in the respondent’s Department since August 2006 having moved from the Legal Aid Board where he worked as an EO since 2002. The complainant has been a Civil Servant for over thirty five years,
he is one of the most experienced EO’s in the Department and at the time of the interview had been working directly to his AP in the absence of a HEO in the section for over a year,
since February 2014 the complainant has been managing five staff and has been responsible for the running of the section,
the complainant received several monetary awards for exceptional performance when he worked in the Department of Social Welfare,
four Killarney based staff, all over the age of 50, did not progress to the second stage of the interview process,
three other EO’s from the Killarney office who are aged between 40-45 and a Clerical Officer (CO) with less experience than the complainant, progressed to the final interview,
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 four Killarney based candidates who were over 50 progressed from the preliminary interview stage,
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,
the interview board did not engage a note taker at the interview,
competency based interviews were introduced about 15 years ago and were a new departure for staff in the complainant’s age group,
the respondent failed to provide the complainant with formal interview training for the competition.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant has been employed in the Civil Service since 1980,
he has been employed as an Executive Officer (EO) since 2002,
in February 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 his scores under the three competencies were less than those achieved by the successful candidates,
the respondent is not obliged at preliminary interview stage to engage a dedicated note taker,
the complainant did not seek interview training as part of his Learning and Development Plan,
the respondent decided to afford all applicants the opportunity of a preliminary interview rather than engage in a paper based short listing procedure.
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 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.
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 he was unsuccessful at the preliminary interview stage because of his 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 his age. The respondent advised the hearing that the complainant was not successful as he 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 his age and had not asked any questions or made any comment in relation to his age. The complainant advised the hearing that it was only when he became aware that two other candidates from the Killarney office who were also over 50 were also unsuccessful at the preliminary interview, that he 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 he was more experienced than the successful candidates. The complainant in advancing this told the hearing that he had worked as an Executive Officer since 2002 and that he had been performing HEO work in an acting up capacity in the year preceding the interview. The complainant advised the hearing that he had been managing five staff in the absence of any HEO in the section and had been reporting directly to the Assistant Principal (AP). The respondent advised the hearing that the complainant had not been in a formal ‘acting up’ role but conceded that he may have been managing staff and reporting to the AP in the section while the HEO position in the section was vacant. The complainant advised the hearing that he had been shocked that he did not succeed at the preliminary interview stage given that he had been effectively doing a HEO job for the preceding year.
5.12 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 the candidates and that marks were then awarded for each competency. The respondent provided the complainant’s results 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 he had not scored as highly as other successful candidates. The respondent at the hearing referred to the interview notes and scores awarded to the complainant at the interview. The complainant told the hearing that he did not avail of the offer of feedback following the interview.
5.14 The respondent prior to the hearing provided a breakdown of successful and unsuccessful candidates by age group. The complainant asserts that he was unsuccessful due to the fact that he was over 50 and that two of his 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 his 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 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.
5.17 The complainant in his submission raised an issue as to why his 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 his 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 his panel but that his score was not high enough relative to all successful candidates.
5.18 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.”
5.19 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. 20 The complainant in the present case has submitted that he has more experience than the successful candidates and appears to be relying to a large extent on the fact that he was employed by the respondent as an Executive Officer (EO) but had been carrying out HEO duties in an informal ‘acting up’ capacity in the year preceding the interview. He also stated that he had been reporting directly to the AP in the section in the absence of a HEO. The complainant told the hearing that he was happy with his performance at the preliminary interview stage and was surprised to hear that he had been unsuccessful.
5.21 The complainant advised the hearing that he had previously applied for and been successful in a competition for promotion to HEO and that he had in 2008, been placed fifth on a panel following an interview for promotion to HEO. The complainant advised the hearing that the panel was dissolved following the moratorium on staffing and that as a result of this he had lost his place on the panel. The complainant in making this submission seems to be asserting that he should have been successful in the 2015 competition due to the fact that he had previously succeeded in a competition for the same grade in 2008. The respondent advised the hearing that it was not disputing that the complainant performed well in his existing role, the respondent added that this was recognised in his annual Performance Management review. The respondent advised the hearing that the complainant was assessed and marks awarded to him based on his performance relative to other candidates at the preliminary interview stage of the March 2015 competition. The respondent also stated that there had not been many promotion opportunities in the period preceding this competition and added that it is likely that this resulted in a more competitive competition as there was a larger number of well qualified candidates who had applied for this competition.
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’s representative advised the hearing that there was no dedicated note taker present at the interview. The respondent in replying to this stated that the respondent was not under any obligation to have a dedicated note taker present at the preliminary interview stage of the competition. The respondent added that they did not have a dedicated note taker due to resources issues. The respondent went on to state that the members of the interview panels were all trained and that all were aware of their responsibilities in respect of the interview process and that detailed interview notes were taken in respect of all interviewees as well as score sheets of their results.
5.24 The complainant’s representative also queried why the respondent used preliminary interviews in place of a paper based shortlisting exercise to reduce the number of candidates. The respondent advised the hearing that it had taken a decision to afford all applicants the opportunity of attending a preliminary interview instead of making a decision to short list candidates based on their forms alone. The respondent submitted that this method was also used in a previous APO competition and that it considered this to be a far more open and accountable shortlisting procedure than a paper based exercise. The complainant’s representative disputed this and suggested that both methods should be used in order that one would act as a control for the other in cases where both methods produced different results.
5.25 The complainant advised the hearing that he 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. The respondent advised the hearing that the complainant had not sought interview training as part of his Learning and Development plan and so it had not been provided. The complainant conceded that he had not sought this prior to the interview.
5.26 The complainant submitted that he had following the interview process queried whether interview training could be provided by the respondent to candidates in advance of future interviews. The respondent indicated that no specific interview training was provided by the respondent and that candidates who wished to obtain such training would have to engage the services of an outside private training company and pay for any such training themselves. The complainant’s representative at the hearing submitted that competency interviews are a new departure for people in the complainant’s age group and that specific training in competency interview techniques should have been provided by the respondent. The respondent advised the hearing that competency interviews have been in use in the Civil Service for a number of years since the 1990’s and that it is an objective and equal way in which candidates can be assessed against specific competencies or skills. It was submitted on behalf of the complainant that he is already performing the role of a HEO but that there is a skill to performing well at competency based interviews and that new entrants are more experienced in filling out these applications and in presenting their examples of competencies. It was submitted that people of the complainant’s age have had less exposure to competency interviews and that the onus is on the respondent to ‘level the playing field’ in this regard by providing training in competency based interview skills. The respondent in reply to this advised the hearing that none of the candidates were provided with interview training for this competition but that it was open to any of the candidates to source such training from outside on a private basis.
5.27 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 he was not successful at the preliminary interview stage was due to his 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.
5.28 I am satisfied from the totality of the evidence adduced that the Complainant has not demonstrated that he is better qualified or that he 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 his 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 - 2008 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
22nd of September, 2016