EMPLOYMENT EQUALITY ACTS 1998-2015

DEC-E2017-086   

Dave Barry

(represented by Pat O'Donoghue, SIPTU

versus 

Solas

(represented by Katie Doyle, IBEC)

File reference: et-155348-ee-15

Date of issue: 15th December 2017

Keywords: Employment Equality Acts, Age, Promotion, Discriminatory question

Dispute

1.1 The case concerns a claim by Dave Barry that he was not promoted on the ground of age in terms of 6(2)(f) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’].

1.2 Through his trade union, the complainant referred a complaint under the Acts to the Equality Tribunal on 9th April 2015. On 10th August 2016 in accordance with her powers under in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Orlaith Mannion, an Adjudication 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 this date, my investigation commenced and a joint hearing was held on 31st August 2016 in Galway as required by Section 79(1) of the Acts. Correspondence continued relating to the case after the hearing.

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

Summary of the complainant’s case

2.1 The complainant commenced employment with the respondent in September 1985 as an Instructor in Information Technology. He submits that he very much enjoys working for the respondent and has never instigated even an internal grievance in his long career with them. 

2.2 The complainant applied for and was interviewed for the position of Assistant Manager in the Limerick Training Centre on 14th April 2014. On 1st July 2014 there was a transfer of functions from the Limerick Training Centre (formerly AnCo, then FÁS and then Solas) to the Limerick and Clare Education and Training Board (LCETB).           

The interview panel consisted of three people:                       

Mr A, HR Manager, Solas                       

Mr B, Manager, Solas Training Centre, Galway                       

Ms C, Member of Limerick Clare ETB  

2.3 Mr A started off the interview by asked Mr Barry to take them through his CV and work experience. Then it was Ms C’s turn. The complainant maintains that she asked ‘Do you think at this stage that you should be taking it easier’. The complainant was aged 60 at the time. The complainant maintains that although he proceeded to answer it, the question deflated him. He interpreted it as a reference to his age and that the interview panel thought that he should be not be going for promotion with five years years left to his compulsory retirement age (as it was then). 

2.4 Subsequent to the interview, Mr Barry did some research into what was appropriate and not appropriate to ask at an interview. He found the Solas guidelines which stated ‘Avoid questions which could be viewed as discriminatory and which are not relevant to the requirements of the job. It went on to say ‘Panel members must be aware of their obligations under the Equal Opportunities policy and Code of Practice and the law governing discrimination.’ 

2.5 Mr Barry submits that Ms C’s question made assumptions about his ability to do the job based on his age. In the interview assessment sheet, it was stated that he ‘would need development in budgets and people management’. Mr Barry previously ‘acted up’ as an Assistant Manger for two separate periods of time and this enhanced his budget management experience then. He also submits that he has helped other Assistant Managers with budgets. He also points out that Financial Accounting was a module in his degree in IT. He felt it was an unfair thing to mark him down on. He also used to run a ferry business prior to becoming an instructor in Limerick Training Centre. He also states his experience managing teams as well as the nature of being a teacher, lecturer and trainer for nearly 40 years enhanced team leadership experience.

2.6 In summarising his educational qualifications on the interview assessment sheet, the panel only noted his oldest third level qualification - BA in Maths and Education. It did not acknowledge that he was subsequently awarded a postgraduate qualification in Computer Systems ( National Framework Qualification Level 9) as well a degree in Information Technology (NFQ Level 8). Instead the form said he had completed ‘various CPD courses’. He submits that this demeans his second degree and higher graduate diploma ( requiring significant time and financial commitment as a mature student) by implying they were equivalent to day long courses on fire safety or manual handling. 

2.7 Mr Barry said he could not sleep that night after the interview as he felt an injustice had been done. He submits that he is not the type of person to complain about things. His years of playing sport as well as managing and coaching sporting teams has taught him to ‘take his beating’. He has had some success – managed club hurling team to a county final and was coach and selector of inter-county senior camogie team. But this was a bridge too far. He submitted that he had five years of working life before retirement (and longer if they let him.). He states that he is still full of energy. He submits that there were very few opportunities for promotion in the previous decade because of the public sector embargo. He submitted a formal grievance using the correct procedures. In fairness, Mr A and Ms C met with him and his Shop Steward on 2nd October 2014. At this meeting he submits both of them said the question was legitimate and was in no way ageist. He maintains that Ms C stated that she would ask the same question again. He says it is interesting that they seem to have changed their position by the hearing and now deny that the question was asked!  

2.8 He escalated his grievance to Dr D (Director of Organisational Development) with Solas. Dr D responded to say she would meet with him by mid-January 2015. However, she never met him or even phoned him to discuss his grievance. When he had not heard by 13th February 2015, he contacted her as to what was the state-of-play with his grievance. He submits that he was disappointed that she responded by asking what redress he sought. In her response back she said that his grievance was irresolvable and will not be progressed through the grievance procedure and that the question was not discriminatory. The complainant submits that in her response she acknowledges that the question was asked. He maintains that because that Dr D did not have a meeting with him, she did not follow the correct procedure. 

2.9 Following a data access request (which was significantly delayed) for his interview notes, he said that it became apparent that he did not receive the correct mark for education and training – in the respondent’s own criteria it stated ½ mark for relevant Certificate, Add 1 for relevant Diploma, Add 2 for relevant degree. The complainant submits that he should have got the maximum of six marks as he had two degrees and a postgraduate higher diploma. Instead he got 5 marks out of 6. 

2.10 The person who obtained the position was aged 38 at the time. He was the youngest candidate.  

2.11 As case law he cited Teresa Mitchell v Southern Health Board[1] and Good v Cork City VEC[2]. 

Summary of the respondent’s case

3.1 As a preliminary issue the respondent submits that the complainant’s case is out of time. The interview took place on 14th April 2014 but the complainant did not lodge his complaint until 9th April 2015. The respondent points out that Mr Barry is now an employee of Limerick and Clare ETB following a transfer of functions although they fully accepts that Solas is correctly named as the respondent as that was his employer at the time. 

3.2 The respondent denies that this question was asked. The respondent maintains what was asked is ‘what motivates you to take on this role at this stage in your career?’ The respondent submits that this was because the complainant was not portraying his previous experience to his advantage at the interview.    

3.3 This was explained to the complainant at the meeting with Mr A and Ms C following him raising a grievance. The respondent states that the marking was based on his performance at interview, not his application form. 

3.4 The respondent points out that Mr A and Ms C willingly met the complainant accompanied by the complainant’s shop steward. As allowed under the respondent’s grievance procedure, the complainant escalated his grievance to the Director, Organisational Development and Support. What she actually wrote in her final response on 18th Mach 2015 was:David,Further to your grievance in relation to the above. After reading the information in your email on 9th December 2014 and having spoken with the interview panel, it is clear this matter cannot be resolved. In the first instance you state that you were asked at the interview ‘do you think at this stage you should be taking it easier? Your further state that you drew a number of inferences based on age as a result of the question. However, in speaking to the interview panel member who asked this question It was stated the question was asked to provide a context in which you could provide your wealth of experience. The question was not ageist as capacity in regard to age was not the intent. It was reported that there was a dichotomy between what was stated in your application form and was being presented at interview. It was reported that the intent of the question was not on whether you thought out the consequences of your application but how did you see yourself in the role. This was reiterated at the meeting with Mr A and Ms C on 2 October 2014. Unfortunately I can neither confirm nor deny your inference of the question nor can I confirm or deny the intent of the question. Therefore I must look to see if age was determinant in the process as a whole. There is no evidence to support that age was a determinant in selection. Your second complaint relates to what was stated in the interview feedback sheet which is scored on how the candidate performs on the day and not what is contained in the application form. While I recognise that you are not in agreement with what was stated in the form, it is the considered view of the interview panel. There is no way to resolve this issue as it is a matter of differing opinion with no supporting evidence to dispute or confirm either opinion. I now come to the points raised in your email dated 10 March 2015 to myself. In the first instance I would not infer that the delay in response was a lack of seriousness of your grievance. It was the result of needing time for a considered response. I also apologise for the typographical error noted in the email. As you rightly noted it should read ‘interview’ rather than ‘individual’. Grievances, if established, relate to a cause of action that should lead to a remedy. It is an attempt to resolve matters. In requesting the information in December I asked you to outline what redress or outcome you expected from this process. You replied ‘I need to refer to a third party or Institute of the State for guidance on this’. On the basis of this statement, I assumed you were seeking advice. It is on this assumption that I asked the question as to whether you have received the information sought that might enable SOLAS to provide what you were seeking, a remedy. I was not asking that you divulge the nature of the conversations or the detail. I was seeking to define what course of action would be required to resolve the matter.  In conclusion, the basis of this grievance is on reported evidence that can be neither substantiated nor disproved. I cannot propose a course of action to resolve the matter no a remedy to compensate for the matter as it is unsubstantiated. For these reasons the matter is irresolvable and will not be progressed through the grievance procedure. With Kind Regards [Director Organisation Development and Support]   

3.5 Dealing with the interview specifically, the respondent states that the Chairperson of any interview board signs a declaration that the interview panel have been briefed on their obligations under the Employment Equality Acts with a particular emphasis on discriminatory questions. The respondent submits that all three were experienced interviewers. In fact, Ms C, who is alleged to have asked the discriminatory question, trains interviewers in interviewing skills. Ms C requested to be on the interview panel. This was because the staff of the Limerick Training Centre were to be reassigned to her organisation. 

3.6 All candidates for the role were subject to the same marking scheme and interview criteria. The interview assessment report is completed by the panel at the end of each interview. The respondent stated that the successful candidate was aged 55. The respondent points out that there have 215 promotions in 14 years (2002 to 2016) throughout the organisation and that there was a spread across various ages. The respondent pointed out that the complainant had only acted up on two occasions as Assistant Manager -1 month in 2005 and 3 months in 2008. In oral evidence, Dr D pointed out that most of the Directors of the respondent are in their sixties. She states that there is not a culture of ageism with the respondent. 

3.7 The respondent submits that MacGabhainn v Salesforce[3]as authority that even though a discriminatory question on the ground of age, the complainant was deservedly not the successful candidate at interview as the role was a sales representative in a German-speaking area. A native German speaker obtained the position.    

3.8 The respondent points out that mere linkage to a discriminatory ground is insufficient to succeed in a discrimination claim. The respondent submits that the complainant has not presented evidence in relation to other comparators.   

Conclusions of the Equality Officer

4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. Section 8 (1) (d) states that an employer shall not discriminate regarding promotion. The discriminatory ground in this case is age. Therefore, the issue for me to decide is whether the complainant has been discriminated on the ground of age regarding access to promotion. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.

Preliminary issue – time limits  

4.3 The respondent has argued that the case is out of time. The complainant followed the internal grievance procedure before lodging a complaint under the Employment Equality Acts. This is to be encouraged. This was not completed until 18th March 2015. I am satisfied that this is a reasonable justification for extending the six month time limit to 12 months as per Section 77 (5) (b) of the Acts.      

4.4 Before turning to the substantive issue, I find it necessary to comment on the respondent’s attempt to misrepresent the situation. In written submissions and at the hearing, the respondent argued that Mr Barry’s comparator was the person who came first on the panel(Mr E) who was five years younger than Mr Barry and who had a MA qualification. However, Mr E was Acting Assistant Manager for many years and on the same day as he did the interview for Assistant Manager (to be made substantive) he was also interviewed for Manager. In fact an email from the respondent to a trade union shop steward said he would be obtaining the Manager position even before the interview took place! However, it is the Assistant Manager competition (not the Manager position) which is the subject of this case. Mr E was not even offered the position of Assistant Manager as he was successful in obtaining the Manager position. Therefore the complainant is correct to name Mr F, who was 38 at the time that he was appointed as Assistant Manager, as the appropriate comparator. For the respondent not to clarify this situation in the written submission and only admit the truth under cross-examination does not assist their case. 

4.5 In O’Higgins v UCD the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:‘1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.8. The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution’[4] 

4.6 I found the complainant to be a compelling witness. I fully accept his evidence that the question was asked in the way he suggests - Do you think at this stage that you should be taking it easier?’ (Paragraphs 2.3 and 3.2) From when he first raised the issue this question was the kernel of his complaint. Unlike the respondent his memory of what was asked never deviated. He also had previously gone for promotion but was not successful but accepted the result. It is clear that Mr Barry’s complaint was made in good faith. Even the softened version that the respondent argued at the hearing that was asked is potentially discriminatory - ‘what motivates you to take on this role at this stage in your career? - especially when the witnesses for the respondent admitted it was not asked of all candidates. While I accept that a job interview is a different crucible to media interviews (which the complainant would have given many as selector to the County Camogie team and as a Club Manager) or giving evidence at a hearing, I find it hard to believe that that he was not performing well at the interview. Consequently I find the reason Ms C supposedly asked the question less than credible. Therefore I find that the question – ‘Do you think at this stage you should be taking things easier?’ in the context of an interview for a promotion is a discriminatory question on the ground of age. I can also easily understand how it would deflate the complainant for the rest of the interview. 

4.7 Regarding the complainant’s suggestion that he was undermarked in relation to his qualifications and experience, it is my experience when assessing whether promotion competitions are conducted in a discriminatory way or not that interview panels tend to minimise qualifications and work history of candidates they perceive to be ‘also rans’. This appears to be the case here. I fully accept that the complainant felt insulted that his degree and postgraduate diploma were dismissed as CPD courses. The person who obtained the position had slightly less qualifications (BTEC in Electronics and well as a BA in Training & Education) and received a similar mark. However, significant weight appears to be given to the fact that the successful candidate was a Director of an electrical contracting company prior to becoming an instructor. However, the interview panel ignored that the complainant set up a ferry company and was a Managing Partner before becoming an instructor. The successful candidate had 9 years experience as an Instructor. The complainant had 28 years. I am conscious that it is not my role to be a proxy for the interview panel. Indeed the person who obtained the position also seems to have been a fine candidate. However, between the discriminatory question and criteria being applied differently to different candidates, I am satisfied that the complainant has established a prima facie case of unlawful discrimination on the ground of age.  

4.8 Turning to respondent’s rebuttal that they conducted an internal grievance and that many senior people in Solas are over 60. First of all, it is clear that the internal investigation was merely a tickbox exercise. Dr D did not even speak with the complainant on the phone to get his side of story. Her response in her email that ‘The question was not ageist as capacity in regard to age was not the intent’. Intent is not a factor in unlawful discrimination. Discrimination is judged to have occurred if a person was treated less favourably on one of the nine grounds in the Employment Equality Acts even if that bias was unconscious. Just because the age profile of Directors is over 60 does not mean that there cannot be age discrimination at middle management level. I am reminded of the Labour Court case cited above –‘mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution’. For these reasons, the respondent has failed to rebut the case.  

4.9 In assessing redress, I am conscious that Solas is the State organisation responsible for funding, planning and co-ordinating further education and training in Ireland. They have conducted research that shows being older is one of the barriers towards participating in further education. Therefore they should be even more conscious of avoiding age-discriminatory practices with their own employees. While it was not an employee in their own organisation who asked the discriminatory question, neither of the other interview panel members intervened. Nor was Mr Barry’s complaint taken seriously subsequently. In the circumstances of this case, I find that compensation is the most appropriate form of redress.    

Decision

5.1 I have concluded my investigation of Mr Barry's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the respondent has discriminated against the complainant regarding access to promotion.

Therefore, I find for the complainant.  

5.2 In accordance with Section 82 of the Act, I order the respondent:

(a) pay the complainant €20,000 in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of the complainant's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct a review of its policies and procedures in relation to its employment policies to ensure that they are in compliance with these Acts with particular reference to the age ground. Clearly the chairperson of an interview panel signing a declaration that the interview panel are familiar with their obligations is insufficient. All interviewers should also receive training on the Employment Equality Acts and an employer’s responsibility under same. A particular emphasis should be put on unconscious bias.  

Orlaith Mannion

Equality Officer/Adjudication Officer

15th December 2017  

[1] [2001] ELR 201 [2] Equality Tribunal EE29-97 [3] DEC-E2007-048 [4] Labour Court Determination EDA131 This determination was upheld by Cooke J. in the High Court [2013] IEHC 508