DEC-E2017-010

EQUALITY OFFICER'S DECISION NO: DEC-E/2017/010

PARTIES

Mr. Michael Grange

V

The Public Appointments Service

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

FILE NO: /EE/2014/223

DATE OF ISSUE: 7th of February, 2017

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, promotion and training. There is also a claim of victimisation.

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 15th of April, 2014.

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 16th of September, 2016. Final correspondence in relation to this complaint was received on the 5th of December, 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 and gender when the respondent failed to call him to the next stage of a competition for the post of Administrative Officer (AO) 2013 for posts in Human Resources (HR), Economics, Finance/Banking, Tax Policy and Law,

he had passed the first stage which was an unsupervised exam and based on these scores was called to the second stage following which he was unsuccessful,

that there was both age and gender discrimination in the marking of the Stage 2 (online assessment tests) as the same test was used for all posts but the outcomes were different in respect of different posts,

that there was age discrimination in the recruitment campaign for the post of AO (Human Resources) by requiring a minimum eligibility criterion for all candidates to hold a relevant qualification of a Human Resources Degree,

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

no discrimination occurred, applicants for the posts were required to register at www.publicjobs.ie and upon registration were allocated a unique nine-digit Candidate ID number to be used to log in to complete the online questionnaire, required of stage 1 and the on line tests of stage 2,

the online documents displayed the candidates name and candidate ID but no information as to gender, age, marital status or qualification,

tests are in multiple choice format and are marked against a predefined scoring key,

there were 2 tests used at stage 2 Verbal and Numerical reasoning. Some of the posts required greater numerical skills namely Tax Policy, Economics and Banking and Finance. A lower score in Numerical skills was acceptable for Human Resources and Law but a higher score was required for Tax Policy, Economics and Banking and Finance,

candidates were required to reach the qualifying mark in each test. In the case of Tax Policy, Economics and Banking and Finance the complainant did not reach the qualifying mark in the Numerical tests and therefore did not pass in these streams,

in the case of the Human Resources stream the complainant reached the qualifying mark but was deemed ineligible to proceed to the next stage as he did not hold the required qualification,

in the case of the Law stream the complainant again reached the qualifying mark and his score ranked him at number 403 on the list of qualifying candidates. Only the top 127 were invited to stage 3,

the complainant has not submitted any evidence that more female than male candidates were shortlisted and has not submitted any evidence that only candidates younger than him were shortlisted,

the respondent allows a candidate to make an informal complaint under Section 7 of the Code of Practice and if dissatisfied then they may seek a review by a decision arbitrator,

if a candidate seeks a review under Section 8 of the Code of Practice and remains dissatisfied by the review, then the candidate can seek a full review by the Commission for Public Service Appointments (CPSA) pursuant to section 8 of the Code of Practice.

the complainant has not availed of any of the redress options under Section 7 or Section 8 in respect of the matters the subject of this complaint.

5. Preliminary Issue – Section 77

5.1 The respondent submits that Section 77 (7) of the Employment Equality Acts 1998-2015 requires that a complainant seeking redress in respect of a complaint of discrimination by the Civil Service Commissioners in the course of a recruitment or selection process shall in the first instance refer the claim for redress to the Commissioners themselves. Section 77(8) confirms that a claim cannot be made to the Tribunal until either the Commissioners have failed to give a decision or the Complainant is not satisfied with the decision. Under the Public Services Management (Recruitment and Appointments) Act, 2004 section 77(7) of the Employment Equality Acts was amended to replace the Civil Service Commissioners by the “holder of a recruitment licence under the Public Services Management (Recruitment and Appointments) Act, 2004”. In the present case the competition was run by the Public Appointments Service.

5.2 It is submitted that the complainant in the present case has failed to seek redress from the respondent under any of the sections of the code of practice and it is submitted that this complaint is in breach of Section 77 and that the Tribunal/Commission has no jurisdiction to hear the claim. The respondent submits that the complainant was invited to submit a complaint under Section 8 but that he failed to do so.

5.3 The complainant submits that he did apply to the respondent for a review, firstly under Section 7 but was advised that his application was submitted outside of the timescale for submission of a Section 7 review. The complainant further submits that he then applied for a Section 8 review having been advised by the respondent that he was too late for a Section 7 review. This is evidenced in a an exchange of emails between the complainant and respondent wherein the respondent advised the complainant on 24th of April, 2014 that he was outside of the time limit for formal review under the CPSA Code of Practice and that there was no further review channel within PAS open to him at that stage. The complainant by email dated 1st of May 2014 acknowledges that the respondent is correct and that he is outside of the time limit for a Section 7 review in respect of the matter. This correspondence from the complainant also raises the point that there are no time barriers within Section 8 and requests that the respondent appoint someone to commence a Section 8 review of the matter.

5.4 The complainant advised the hearing that he had sought the above reviews from the respondent but that the Section 8 review was not progressed. The complainant stated that he had requested such review via an exchange of emails (submitted in evidence) between the complainant and the respondent during the period March to May 2014. The complainant’s email of 1st of May, 2014 specifically requests a Section 8 review. Following this a reply issued from the respondent asking the complainant to be more specific in respect of the allegations raised. The complainant did not reply to this email. The respondent submits that the complainant by failing to respond to their request for further details did not pursue a request for a Section 8 review. It is clear from an examination of Section 77(7) that all that is required is a “claim for redress” and I am satisfied that the complainant in his emails to the respondent has clearly indicated that he is making a claim for redress.

5.5 I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant did submit a request for a Section 8 review. I therefore find that the complainant has satisfied section 77 (7) in terms of having referred a claim in the first instance to the Public Appointments Service and that I am not precluded from hearing the case by virtue of Section 77(8).

5.6 The complainant at the hearing submitted that in the absence of a finding that he had complied with Section 77, he would be seeking a referral of Section 77(7) to the European Court of Justice under Article 267, however, given that I am finding in his favour on this preliminary issue, this is a moot point and I am satisfied that no such referral is necessary.

6. Findings and Conclusions of the Equality Officer/Adjudicator

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, promotion and trainingwhen the respondent failed to call him to next stage in a competition for Administrative Officer 2013 for posts in Human Resources (HR), Economics, Finance/Banking, Tax Policy and Law. There is also a claim of victimisation. 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 the respondent failed to call him to next stage in a competition for the post of Administrative Officer 2013 because of his gender and/or age. In addition, the complainant has submitted that the requirement for candidates to hold a Human Resources qualification to qualify for the HR stream is indirectly discriminatory towards people of the complainant’s age group.

6.7 The complainant advised the hearing that he was discriminated against, on grounds of age and gender when the respondent failed to call him to the next stage of a competition for the post of Administrative Officer 2013 for posts in Human Resources (HR), Economics, Finance/Banking, Tax Policy and Law. The complainant advised the hearing that he had passed the first stage in all streams which was an unsupervised online exam and based on these test scores he was called to the second stage following which he was unsuccessful.

6.8 The complainant in advancing his claim on the ground of gender presented to the hearing a copy of the Public Appointments Service recruitment Booklet. The complainant in referring to the booklet advised the hearing that the booklet, which contains pictures of individuals representative of the various grades, clearly shows that the pictures depicting those at higher grades are pictures of females and the pictures depicting those at lower grades are pictures of males. The complainant refers specifically to the section of the booklet which describes the post of Administrative Officer and which shows a picture of a female whom the complainant estimates to be in her 30’s as a depiction of an incumbent of this post. This the complainant submits is evidence that the PAS were seeking females of a certain age group when recruiting for this competition.

6.9 The complainant advised the hearing that that there was both age and gender discrimination in the marking of the Stage 2 (online assessment tests) as the same test was used for all posts but he told the hearing that he had achieved differing levels of success in respect of qualifying for the different streams even though the same tests and results were used for all. The respondent in replying to this advised the hearing that the tests are in multiple choice format and are marked against a predefined scoring key, and that candidates were required to reach the qualifying mark in each test. The respondent went on to state that there were 2 tests used at stage 2, Verbal and Numerical reasoning and that some of the posts required greater numerical skills, namely, Tax Policy, Economics and Banking and Finance. The respondent stated that a lower score in Numerical skills was acceptable for Human Resources and Law but a higher score was required for Tax Policy, Economics and Banking and Finance. The respondent stated that in the case of Verbal Reasoning the same qualifying score applied to all streams.

6. 10 The respondent advised the hearing that in the case of Tax Policy, Economics and Banking and Finance the complainant did not reach the qualifying marks in the Numerical tests and therefore did not pass in these streams.

6.11 The respondent advised the hearing that the complainant had reached the qualifying marks in the HR and Law streams. The respondent advised the hearing that the complainant did not progress to the interview stage in the Law stream even though he reached the qualifying mark as his score was not high enough relative to other successful candidates. The respondent went on to state that the complainants score ranked him at number 403 on the list of qualifying candidates but the respondent stated that only the top 127 in this stream were invited to stage 3. The respondent advised the hearing that applicants for all of the posts advertised were required to register at www.publicjobs.ie and upon registration were allocated a unique nine-digit Candidate ID number to be used to log in to complete the online questionnaire, required of stage 1 and the on line tests of stage 2. The respondent stated that the online documents displayed the candidates name and candidate ID but no information as to gender, age marital status or qualification.

6.12 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. 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.

6.13 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 progressing to stage three to a greater degree than the successful candidates.

6.14 The complainant advised the hearing 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 aspect of the claim referred to the fact that the then Equality Authority had written to both the respondent and to the Department of Public Expenditure and Reform (DPER) following the publication of a newspaper article on 20th of December, 2015 which discusses an anonymous complaint by an unnamed civil servant. The respondent advised the hearing that it is evident from the article that the email in which the term “New Blood” was used, was not generated by the Public Appointments Service but was an internal email within the Department of Public Expenditure and Reform. The respondent went on to state that the Equality Authority had following this article, written to the Department of Public Expenditure and Reform and to the Respondents herein. The respondent advised the hearing that the Public Appointments Service is an independent body established by statute and is not any part of the Department of Public Expenditure and Reform but notwithstanding that, the Respondent put into evidence the correspondence between the Equality Authority and PAS. The said correspondence sets out the policies of PAS together with a statistical analysis of the recruitment record of the Respondent. It is submitted that the response of the Respondent fully satisfied the then Equality Authority as to the policies and practices of PAS. If it had not then the Equality Authority had the statutory powers should it be deemed appropriate, to launch an investigation into the practices and policies of the Department of Public Expenditure and Reform and of the Respondent. It is therefore within the jurisdiction and capacity of the national courts and the bodies set up pursuant to the European Equality Directive to fully deal with and remedy a complaint of this nature. The respondent at the hearing provided statistical information on the current recruitment campaign which showed that candidates older than the Complainant and candidates within the Complainant’s age range were shortlisted, this being evidence that “new blood” does not bear the interpretation placed upon it by the Complainant. The complainant has submitted that this matter should also be referred as an Article 267 Reference to the European Court of Justice.

6.15 The Complainant in this case has submitted that the reason he was not short listed for interview was due to his age and/or gender. Having considered the submissions made and the totality of the evidence adduced I am satisfied that the complainant was not discriminated against by the respondent on the ground of age and/or gender in respect of these matters. I am also satisfied that it is not appropriate for this matter to be framed as an Article 267 Reference to the European Court of Justice.

7. Administrative Officer (Human Resources)- allegation of discrimination on grounds of age

7.1 The complainant advised the hearing that he was not successful in the Administrative Officer (Human Resources) stream due to his age and/or gender. The respondent advised the hearing that the complainant had reached the qualifying mark in the Human Resources (HR) stream but that he had not progressed to the next stage in this stream as he did not hold a relevant qualification which for this stream was a Human Resources degree. The complainant advised the hearing that he considered that his primary degree in Business studies should be considered as a relevant qualification as it had contained elements of HR.

7.2 The complainant in advancing this aspect of his claim also submits that the requirement of a HR degree is indirectly discriminatory to people in his age group as he submits that colleges did not offer HR degrees at the time the complainant went to college and attained his primary degree. The complainant did not produce any statistical evidence in support of this assertion. The respondent in replying to this refuted this aspect of the claim and also stated that it was open to the complainant to attain a HR degree at any time in his life if he so wished. The respondent also referred to the fact that the complainant had as a mature student, studied and attained a Bachelor at Law Degree, the respondent stated that it was equally open to him to have taken on any course as a mature student of any age, including a HR Degree.

7.3 The complainant has also submitted that the respondent by requiring a particular qualification for a particular employment position that gives rise to indirect age discrimination is also a matter which should be referred to the European Court of Justice. The complainant in support of this has submitted that demanding a specific academic/occupational qualification with a contemporary label and refusing to accept an older label is indirect age discrimination and he refers to the fact that PAS Counsel mentioned he had a degree in Personnel, a degree which is equivalent to a HR degree and which has been available in colleges for many years. The complainant in this regard submits that a degree in Personnel would not meet the respondent’s requirements of a Human Resources degree. The respondent at the hearing did not indicate whether or not a degree in Personnel would not meet its criteria but that the complainant’s degree in Business Studies did not meet the criteria. Witness for the respondent Ms. G went onto state that a Business degree with a masters in Human Resources would be considered a relevant qualification. The complainant at the hearing referred to the fact that Ms. G had been aware of his name prior to the competition as she had conducted a review in respect of a previous complaint brought by the complainant. The complainant in this regard asked who made the decision in respect of the required qualification for the post of Administrative Officer Human Resources. Ms. G advised the hearing that it was DPER who made the decision regarding qualifications required for the post.

7.4 In considering this aspect of the claim I am again guided by the Labour Court decision in Melbury v. Valpeters EDA/0917 which 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.

7.5 The complainant has submitted that this matter should also be referred as an Article 267 Reference to the European Court of Justice. I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not was not directly or indirectly discriminated against on the ground of age in respect of these matters. I am also satisfied that it is not appropriate for this matter to be framed as an Article 267 Reference to the European Court of Justice.

8. Victimisation

8.1 Section 74(2) of the Employment Equality Acts, 1998-2015 defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another

employee for any of the purposes of this Act or any enactment repealed by

this Act,

(e) an employee having been a witness in any proceedings under this Act or the

Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under

this Act or the said Act of 2000 or which was unlawful under any such repealed

enactment, or

(g) an employee having given notice of an intention to take any of the actions

mentioned in the preceding paragraphs.

8.2 The complainant in his complaint form submitted that he was victimised by the respondent. The complainant at the hearing did not adduce any evidence to substantiate his claim of victimisation. Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to these matters.

9. Decision of the Equality Officer/Adjudicator

9.1 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

(i) the respondent did not discriminate against the complainant either directly or indirectly on ground 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 togetting a job, promotion and/or trainingwhen the respondent failed to call him to next stage in a competition for the post of Administrative Officer (Human Resources), 2013.

(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 togetting a job, promotion and/or trainingwhen the respondent failed to call him to next stage in a competition for the post of Administrative Officer (Human Resources), 2013.

(iii) the respondent did not discriminate against the complainant on grounds of gender and/or age in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in torelation to getting a job, promotion and/or trainingwhen the respondent failed to call him to next stage in a competition for Administrative Officer 2013 for posts in Economics, Finance/Banking, Tax Policy and Law.

(iv) that the complainant has failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts.

___________________

Orla Jones

Adjudication Officer/Equality Officer

7th of February, 2017