Complainant

Respondent

Anonymised Parties

A Job Applicant

A Sporting Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008045-001

08/11/2016

The case concerns a complaint by Mr A., that a Sporting Organisation discriminated against him on the ground of his age, contrary to S. 6(2)(f) of the Employment Equality Acts 1998-2015, in terms of access to employment contrary to S. 8(1) of the Acts.

The complainant referred a complaint to the Director General of the Workplace Relations Commission on 8 November 2016.   A written submission was received from the complainant along with his original complaint application and from the respondent on 13 December 2016. On 8 February 2017, in accordance with her powers under S. 75 of the Acts, the Director General delegated the case to me for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 5 April 2017. Additional submissions were received from both parties at the hearing of the complaint on 5 April 2017, and at my request, post hearing on 10 May 2017 from the complainant and on 31 May 2017 from the respondent.

The complainant, a former Irish champion in his chosen sport, embarked on a career in sports administration once his own active career had come to a close. He started with managing facilities for his sport at a quite local level and successively worked his way up into a senior position with the international body which regulates his sport, a position which he held for 24 years. Along the way, he had involvement with virtually every aspect of managing in his sport, and submits that he effectively committed his life to the development of his sport. The complainant gave details of all these professional way stations in his oral evidence, and they were not disputed by the respondent.

When the respondent, which regulates the sport in Ireland, advertised for a Chief Executive Officer, the complainant applied, but was unsuccessful, despite preparing very carefully for the process and having, in his view, two successful interviews. The complainant also contends that his senior international role made him vastly more qualified than the considerably younger, successful competitor, who joined the respondent from a different sporting organisation which is involved in overseeing a popular team sport. Whilst his competitor had stated in his job application that he pursued the sport which the respondent represents as a hobby, the complainant noted in his evidence that he himself ran the public facilities in which his competitor pursued his hobby.   He also noted that high performance is different in team and single athlete sports, and that this difference would have represented a learning curve for someone coming from a team sport.   Finally, the complainant emphasised strongly that apart from personal reasons for wishing to return to Ireland, he very much wanted to do something for his sport in Ireland if he had been appointed CEO.

It is the complainant’s contention that his age, 58 years at the time of application, was the reason for this, and that therefore, the respondent discriminated against him on the ground of age.  The complainant’s successful comparator was approximately 44 years of age at the time of application. The complainant further noted in his oral evidence that his interview notes had been marked by a member of the board with the word “mature”, which he says is also a direct reference to his age.

In cross-examination, the complainant confirmed that he was not asked for his age at interview, but stated that it could be inferred from his cv. He reiterated that he could see no objective reason for not being appointed.

The complainant also took issue with the manner in which he was being notified about his lack of success, in that he learned of the appointment of the successful candidate from the media before the respondent had contacted him to advise him of the outcome of his application.

The respondent denies discriminating against the complainant as alleged or at all. It acknowledges the complainant’s extensive experience as a senior administrator in the relevant sport, and in the evidence of its chairman, went to so far as to acknowledge that the complainant’s “energy and enthusiasm” were “clear to see”.   The chairman, Mr B., whilst accepting that he wrote the word “mature” on the complainant’s interview notes, strenuously denied intending any negative connotation with the complainant’s age. He explained that the previous candidate had not displayed the necessary maturity for the role and that this struck him as positive about the complainant.

The respondent is a largely volunteer-run organisation, with a volunteer board based in Dublin.   The CEO is its only paid position, plus between 15 and 20 paid contractors.   The respondent board is elected by the clubs which form the organisation.   The respondent had had the same CEO for 20 years, but this person retired in 2016.   The next CEO stayed for only 18 months, a costly experience for the respondent which it did not want to repeat.   Accordingly, it sought the assistance of Sport Ireland for the hiring campaign which is at the centre of the within case.

79 candidates applied, out of which eight were shortlisted to be interviewed. The interview questions were prepared by the respondent’s chairman with the assistance of the subcommittee which managed the campaign, and then cleared by Sport Ireland. All candidates were asked identical questions.

In the first round of interviews, the successful candidate came in first place and the complainant in second place.   The candidates were not asked their ages, and this was evaluated by the respondent only in the week before the case came to hearing.

Mr B. stated in his evidence that in the second round of interviews, the complainant, who had appeared quite laid back and relaxed in his first interview, was very nervous, which Mr B. said surprised him. The successful candidate performed very well. In Mr B.’s recollection – he stated that he did not take notes on this occasion – there were lots of similarities in the four presentations of the second-round candidates.

In the post-interview ranking exercise, Mr B. ‘s first ranked candidate was a woman in her mid-fifties. A candidate in his forties was knocked out in this round. A psychological assessment was then decided on, which according to Mr B. was positive for all candidates in terms of their calibre and level of enthusiasm. Two candidates in their fifties, including the complainant, and one candidate in his forties – the successful candidate – went for the psychological assessment.

Mr B. further stated that the final decision was made by a seven-person subcommittee composed of members of the respondent, but without the person from Sport Ireland who had previously sat on the interview board. Mr B. stated that the decision to appoint the successful candidate was a “fast one”, and that he garnered five votes as opposed to one each for the complainant and the other candidate.  Mr B. explained that the committee felt that the successful candidate’s experience was more suitable for the organisation, based on the following evidence in particular:

Funding: The complainant had lots of experience in working with international sponsors, whereas the successful candidate was familiar with funding sources in government and local authorities and had had a strong grassroots involvement in his current sport, something the respondent felt was crucial for the development of its own organisation.   The successful candidate also had what was described as a “huge amount of on-the-ground experience” in terms of sponsorship.

Capital grant applications: According to the respondent, the successful candidate had better experience there, as well as in matters like pit surfaces and where to get good value on AstroTurf and similar details.  

In summary, it was felt that the complainant’s experience in his international role was too high-level for what the respondent needed.

In terms of details which had gone wrong with the notification to the complainant about his lack of success, Mr B. offered his apologies directly to the complainant towards the end of his evidence. He also pointed out that the subcommittee was actually closer in age to the complainant than to the successful candidate.

The issue for decision in this case is whether the complainant was discriminated against in access to employment, on the ground of his age, within the meaning of the Acts.

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.

In coming to my decision, I have considered all oral and written evidence presented to me by the parties. In addition, the application and cv of the successful candidate were made available by him, through his solicitor, following an order from myself pursuant to my powers under S. 95(1) of the Acts. These documents were made available to the complainant and his representatives immediately prior to hearing and were canvassed by the parties at the hearing of the complaint. Due to privacy assurances sought by, and granted to, the successful candidate, I have refrained from reproducing same in detail in the text of this decision.

Turning to the matter on hand, first of all, I am of the view that the mistakes which occurred within the respondent organisation in communicating the competition outcome to the candidates and which resulted in the complainant learning of it through the media are not of sufficient significance within the whole of the within case to constitute discrimination, discomfiting as they were to the complainant. I am satisfied that the apology offered by the respondent chairman Mr B. at the hearing of the complaint disposes of this point adequately and appropriately.

In terms of the bulk of the evidence adduced, I am satisfied that the complainant has succeeded in establishing a prima facie case, that is, facts from which possible discrimination may be inferred and which is for the respondent to rebut.  

In looking at why I find this to be the case, it is useful to recall the High Court case Mary Helen Davis v. Dublin Institute of Technology [1999 No. 493SpCt5], which was an appeal on a point of law from a Labour Court determination, which in turn was an appeals decision from an Equality Officer determination under the Employment Equality Act, 1977. In that case, the complainant and the successful candidate, as well as other short listed candidates, were quite close in qualifications and experience. Quirke J upheld the Labour Court’s finding that the differences were insufficient in terms of qualifications, experience and responsibility to justify a prima facie finding of discrimination, and noted that a

gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation of the type referred to in Zafar (supra). A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidate “together with” a gender difference may give rise to such a requirement. [Emphasis in the original.]

I am satisfied that in the within case, the differences between the complainant and the successful candidate really are significant, having had sight of both of their application forms and cv’s in evidence, and that the successful candidate was indeed significantly less qualified than the complainant.   This, together with an age difference of about 14 years between them, with the complainant being the older candidate, does indeed establish facts from which age discrimination may be inferred.   These are further supported by the respondent’s uncontroverted evidence that after the psychological profiling, both candidates over 50 were unsuccessful, which also points to age being a factor in the appointment decision.

As regards this psychological assessment, counsel for the complainant argued, first in the hearing and then in a post-hearing written submission which I requested from both representatives to allow for more carefully developed arguments, that I ought to request the psychological assessment of the successful candidate since this assessment influenced the decision.

Counsel for the respondent argued in his submission that not only did all candidates who underwent the psychological testing have a legitimate expectation that this process would remain confidential, but also that since the outcomes for all three candidates were very similar, it had no bearing on the ultimate decision making.

I prefer the respondent’s argument on this point. It is important to note that the testing company was a third party in the process who had no investment in the outcome of the tests, and I accept Mr B.’s evidence that all three profiles were very similar and all three remaining candidates were judged to be suitable.   In those circumstances, and with not a shred of evidence of any interference by the respondent in the test outcome – and I wish to stress that at no point did counsel for the complainant suggest such a thing might have happened -, I do not consider it necessary to have sight of, or to evaluate, these test outcomes.   I will therefore move on to the respondent’s ultimate decision-making and their arguments for a possible rebuttal of the prima facie case which the complainant has established.

These rebuttal arguments are essentially the same as those which influenced the final decision, and of which Mr B. gave extensive evidence at the hearing of the complaint. They are summarised above. I wish to note that I experienced Mr B. as a conscientious and truthful witness and that I have no doubts as to the veracity of his statements. Neither does it appear to me that he bears the complainant any ill-will personally.  I accept Mr B.’s evidence that the successful candidate succeeded because he garnered five out of seven votes when the matter came to a vote.

That said, a voting process can be influenced by conscious or sub-conscious discriminatory motives as much as any other human activity. I already noted that both older candidates drew the short straw in that voting process, and how this supports the complainant’s contentions.

The reasons given by Mr B. for the appointment of the successful candidate, that he had better contacts in local authorities, that he had better “grassroots experience” and “on the ground experience in terms of sponsorship”, that he knew, for example, where to source cheap AstroTurf, and better experience in making capital grant applications, make less sense when one considers that they relate to an entirely different sport, and a team sport for that matter, which bears little resemblance to the sport which the respondent is responsible for. Furthermore, as I noted in my summary of the complainant’s case, the complainant had worked his way up as an administrator in his sport and clearly had experience at mundane levels of administering his sport as much as at the top.   The respondent’s argument might be more valid if the complainant had moved from his active career directly into his senior administrative position and had never worked on the ground or at grassroots level. As is evident from the complainant’s cv, he has indeed done so.  

Any organisation hiring a senior manager is of course entitled to emphasise the immediate challenges which the new hire needs to address, but there is simply nothing in the complainant’s cv which would explain why the within respondent felt it could not trust the complainant to meet those challenges as well, or possibly better, than the successful candidate.  

In its recent decision in Gaelscoil Chill Dara v. Bernadette Moore [EDA 1630], the Labour Court reviewed two seminal principles which apply to cases in which discrimination in access to employment is alleged. In the Deputy Chairman’s words:

In Determination EDA042, Kathleen Moore Walsh v Waterford Institute of Technology this Court held that in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision-makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

In Determination EDA077-O’Halloran v Galway City Partnership the Court pointed out that the qualifications or criteria which are to be expected of candidates are 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.

Whilst I am ever mindful of the principle enunciated in the Moore Walsh case, and I certainly do not wish to imply that I am substituting my own judgment over the respondent’s in terms of the selection of the candidates in the within case, I am firmly of the opinion that it is O’Halloran which is applicable to the facts of this case. It is clear that the chosen criteria were applied inconsistently between candidates, as well as the complainant being better qualified: Both candidates had qualifications and experience which enabled to them to meet the respondent’s stated priorities, and the complainant was significantly better qualified and had all his professional experience in the sport which the respondent represents.  

In these circumstances, I find that the respondent’s explanations have not rebutted the prima facie case which the complainant has established and that accordingly, the complainant is entitled to succeed.

I find that the sporting organisation who is the respondent in this case did discriminate against the complainant, on the ground of age, in terms of access to employment contrary to S. 8(1) of the Employment Equality Acts 1998-2015.

In accordance with Section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €6,500 in compensation for the effects of the discrimination. This is half of the maximum award of €13,000 I can make and takes into account statements made by the complainant during the hearing of the complaint, that he had not taken the case for the money, his relatively comfortable situation as a senior international sports administrator, and the fact that the respondent is a non-profit volunteer organisation whose resources are limited.

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).

Age – access to employment – prima facie case – Mary Helen Davis v. Dublin Institute of Technology – Gaelscoil Chill Dara v. Bernadette Moore - Kathleen Moore Walsh v Waterford Institute of Technology - O’Halloran v Galway City Partnership.