DEC-E2017-035

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-035

PARTIES

Ms Antoinette Pentony

AND

TUSLA/Child and Family Agency.

(Represented by Mason Hayes and Curran)

File reference: ET-156913-ee-15

Date of issue: 26th May 2017

HEADNOTES: Employment Equality Acts, – Age – Access to employment.

1.DISPUTE

1.1. This dispute concerns a claim by Ms Antoinette Pentony (hereinafter referred to as “the complainant”) that she was discriminated against by TUSLA/Child and Family Agency (hereinafter referred to as “the respondent”) on the ground of age contrary to section 6(2)(f) of the Employment Equality Acts (hereinafter referred to as “the Acts”) in terms of access to employment in accordance with section 8 of the Acts.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on the 8th June 2015 under the Acts. On 24th April 2017 , in accordance with her powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. I proceeded to hearing on 23rd May 2017. The respondent made a written submission in advance of the hearing. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

1.3 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.

2. SUMMARY OF COMPLAINANT'S WRITTEN SUBMISSION

2.1. In March 2015 the complainant applied for a position with the respondent but was not called to interview. The complainant maintains that she is suitably qualified and is convinced that the only reason she was not invited for interview is due to her age as she was 56 years old at the relevant time.

2.2. The complainant states that she cannot believe that her educational qualifications and experience in the relevant area were surpassed by all those who were invited for interview.

2.3. The complainant states that she has not received a satisfactory answer from the respondent regarding the reasons for her not being called for interview.

3. RESPONDENT'S SUBMISSION

3.1. On 4 February 2015, the Child and Family Agency placed a notification of a public recruitment. It also indicated that panels were to be established for one year for other areas nationally due to future vacancies arising. A detailed job specification and terms and conditions for the position have been provided for consideration. This document sets out eligibility criteria for the position in addition to post specific requirements and the skills, competencies and knowledge required. Under the section, Campaign Specific Selection Process – Shortlisting/Interview, it stated the following:

“Shortlisting may be carried out on the basis of information supplied in your application. The criteria for shortlisting are based on the requirements of the post as outlined in the eligibility criteria and skills, competencies and/or knowledge section of this job specification. Therefore it is very important that you think about your experience in light of those requirements.

Failure to include information regarding these requirements may result in you not being called forward to the next stage of the selection process.

Those successful at the short listing stage of this process (where applied) will be called forward to interview.”

3.2. The respondent submits that applicants were required to fill out a very comprehensive application form. This application form was in two parts. The first part required applicants to set out their educational and employment history, whereas the second part consisted of a competency assessment. In this section, applicants were required to describe personal achievements which demonstrated certain skills and abilities which had been identified as essential to the position. Candidates were requested to describe a situation from their experience which they considered was the best example of the skill/ability outlined in the headings of each page in the competency assessment. These 11 headings matched those set out in the “Skills, competencies and knowledge” section of the Job Specification & Terms and Conditions document.

3.3. The Respondent submits that they received 346 applications for the various positions. An initial review of the applications was carried out to confirm that each applicant had the required qualifications for the position. Applicants were required to have a “Quality and Qualifications Ireland Level 8 (or higher), major academic award, (or equivalent qualification), in health education, psychology or social science area,” and a minimum of three years relevant experience working with vulnerable families and children.

3.4. After confirming that applicants had the necessary qualifications, the Employee Relations Manager together with a number of senior regional managers reviewed the competency assessment section of the application forms. The respondent submits that the shortlisting was carried out in accordance with the National Education Welfare Board Competency Framework, which sets out the criteria for assessing 11 specific competencies, which had been identified as being essential to the position. The application forms were assessed in respect of each of the 11 competencies. Only those applicants who were deemed to have met the requirements of all 11 competencies were shortlisted for interview. Of the 346 applicants, 146 were deemed to have met these requirements.

3.5. The respondent submits that In the case of the Complainant, she was deemed to have met the requirements in 10 out of the 11 competencies. She was not deemed, however, to have met the required standard in “Delivering a high quality service”. In the shortlisting exercise, the Complainant was found to have demonstrated insufficient evidence of the key skill of delivering a high quality service in accordance with the criteria outlined in the NEWB Competency Framework document. As a result, the Complainant, along with other applicants who had not been deemed to have met all 11 criteria, was not shortlisted for interview.

3.6. All unsuccessful applicants were informed by E-mail that they had not been shortlisted for interview in an email on 24 March 2015. The Complainant responded by email to her on the same date in which she stated that she was “somewhat dismayed” not to have been shortlisted for interview. In this email, the Complainant requested to be advised of the specific grounds for the decision not to shortlist her for interview. The Complainant also emailed the Employee Relations Manager on the same date. She responded by email dated 31 March 2015 in which she advised the Complainant that she had not demonstrated “sufficient evidence of skills in the Competency Assessment, in the competency ‘Delivering a high quality service’”. She advised advised that the Complainant would not be brought forward to interview stage at this time. The Complainant responded by email on 1 April 2015. In her email of response dated 9 April 2015, the Employee Relations Manager stated that she would be in contract to discuss and answer the Complainant’s queries.

3.7. For the purposes of the hearing of this complaint, the respondent submits that an examination of the 146 applicants who were shortlisted for interview has been undertaken. Where applicants provided dates of their education, these were used to approximate the ages of the applicant on the basis of an applicant leaving school at the age of 18. In some cases no dates were provided in which case it was not possible to estimate an age. The Respondent submits that it was not aware of the complainants age at the time that her application was assessed. The approximated ages of all applicants are set out as follows:

3.8. The respondent submits that, based on the information set out above, the Complainant has not established a prima facie case from which it can be inferred that she was discriminated against in not being shortlisted for interview, either directly or indirectly.

4. FINDINGS & CONCLUSION

4.1 I have to decide if the complainant was discriminated against in relation to access to employment on the age ground. In reaching my decision I have taken into account all of the submissions, oral and written, made in the course of my investigation as well as evidence presented at the hearing. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

4.2 In Melbury Developments v Arturs Valpetters (EDA 0917) the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd (EDA103) that one of the facts which a complainant must establish is that there was a difference in treatment between him/his and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)

4.8 The complainant was one of 200 candidates who were not short listed. At the hearing of the complaint, the complainant submitted that she had only formed the view that there may be age bias following receipt of an E-mail from the respondent informing her that she had been unsuccessful. The complainant gave evidence that she had begun to speculate that there may be an age bias because of her relative success in a previous similar competition, her extensive experience and her life experience. The complainant has presented no evidence other than an estimation of her own ability relative to 145 other successful candidates about whom she knows nothing. I cannot elevate such speculation to a factual basis upon which an inference of discrimination can be drawn.

4.9 The Employment Relationship manager responsible for the recruitment competition relevant to this complaint attended the hearing and gave direct detailed evidence of the the process used. I found her to be a credible and reliable witness who gave a good account of a much standardised process for the assessment of competency based applications. I accept the respondent’s assertion that the complainant was not short listed based on entirely on failure to demonstrate required experience in one of the eleven competencies and I find no evidence that the selection process was tainted by unlawful discrimination relating to the age ground. I have examined the complainant’s application against the detail of the failed competency and I find nothing that would arise any suspicion that the assessor for the respondent acted in an unusual manner or made an erratic decision. The selection process used by the respondent is well documented and standardised.

4.9 Having regard to the foregoing consideration by the Labour Court and having considered all evidence, I am not satisfied that the complainant has established facts from which if can be shown that he was treated in a less favourable manner than others on the ground of age.

5. DECISION OF THE EQUALITY OFFICER.

5.1 In accordance with section 79 of the Employment Equality Acts and section 41(5) (a) (iii) of the Workplace Relations Act 2015, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that she was subject to discriminatory treatment on the age ground.

____________________

Peter Healy

Adjudication officer

26th May 2017