Complainant

Respondent

Parties

Donal McGrath

Public Appointments Service

Representatives

Cathy Maguire B.L

Act

Complaint Reference No.

Date of Receipt

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

CA-00013010-001

08/08/2017

The complainant is an ICT Specialist who applied for a position through an open public competition.

He was not successful and complains that the respondent discriminated against him on the grounds of his age.

The respondent is a large recruitment agency with very extensive responsibilities for filling vacancies across a wide spread of employment activity in Ireland.

The complainant says that he has high level qualifications and extensive experience both in Ireland and in other countries.

While he was placed on a panel for a future position he says that the position allocated to him did not reflect his qualifications and experience.

He submits a number of grounds for his complaint.

At one stage the interview board reviewed its own decision in breach of fair procedure principles,

Secondly, the Interview Board lacked the competence to assess his application,

Thirdly, the Interview Board did not properly consider his experience,

Fourthly, the information he submitted was not properly analysed,

And finally, he says the administrative management of the process was poor, and that it was delayed.

He says that the board reached conclusions based on his profile and experience as outlined in the application form and that this led to a conclusion about his age which placed him outside the range of the respondent’s preferred candidates.

He says his placement at the particular level on the panel was unfair and irrational and was unacceptable.

The respondent says that the complainant was, in fact, deemed eligible for appointment and was placed on a panel from which future vacancies would be filled. As those vacancies arose the complainant would be called for interview.

By way of a preliminary matter, the respondent states that the complainant has not established a prima facie case.

Detailed submissions were made which showed the age spread of applicants and candidates as placed in the ranking.

Detailed evidence was given regarding the assessment of the candidates by Witness A.

He was a Senior Manager and also an IT specialist. His role was to assess the technical aspects of the applications.

He stressed that he could only do so on the basis of what was on the application forms. He gave evidence in respect of specific questions on the application form of having gone through the complainant’s application and finding it vague and lacking in detail leaving it difficult to establish precisely the scope of the complainant’s skill level.

He stated that he was not aware of the complainant’s age. While this was on the application form, it was not included in the material given to him to assess the candidate.

Witness B also gave evidence. She carried out the informal review of the initial ranking.

This included looking at the applicants who were ranked higher, reviewing the process and speaking to the interview board.

Her main focus was to ensure that no unfair criteria were applied and she concluded that the marking was fair.

Witness C carried out a further review. She works in the respondent’s Compliance Unit, among whose functions is to oversee the conduct of competitions within the respondent. She too reviewed the application and met the interview board. She outlined her findings in correspondence to the complainant which in summary were that, in respect of named headings he did not establish his credentials as well as other candidates.

The respondent concludes that the complainant has failed to establish any facts from which discrimination may be inferred.

He was simply dissatisfied with the outcome of the competition and his ranking and erroneously concluded that this could only be attributable to his age. In fact, the detailed statistical evidence reveals no evidence of age discrimination.

The complainant was ranked solely on the basis of the information contained on his application form

Finally, he failed to establish any flaws in the review process. His complaint that the process was delayed is without substance; it lasted only a month.

There is a preliminary matter to be decided as to whether the complainant has established a prima facie case.

The standard required to establish a prima facie case is relatively low. It is not the same as having to establish that the complaint is likely to succeed; merely that facts have been presented that are of sufficient significance to raise a presumption of discrimination.

Section 85A of the Employment Equality Act deals with the burden of proof in discrimination complaints as follows;

(1)    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

A prima facie case establishes three things

That the complainant is covered by the relevant discriminatory grounds,

There was specific treatment by the respondent,

The treatment was less favourable that treatment that was or would have been afforded to another person (the comparator) in similar circumstances.

Equality Officers have held, for example in Mr Marcin Wilcocki v Alliance PLC (DEC-S2016-032) that there must be facts of ‘sufficient significance’ to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or the acts are transparently attributable to a non-discriminatory cause.

The complainant confirmed at the hearing that he was aware that the review would be based on his application as a desk exercise. Therefore, the outcome of his application would be determined by what was on his application form.

Where a preliminary point arises, it is the normal practise of the WRC to reserve a decision on the preliminary matter and hear the substantive complaint.

If the preliminary matter is not upheld, then an Adjudicator will issue a decision on the substantive complaint, having hear the full case.

Critically, a complaint of discrimination must contain evidence of less favourable treatment; normally by means of a comparator. The obligation to establish the prima facie case in this regard falls squarely on the complainant.

On this important criterion, the evidence is all against the complainant. The detailed submissions of the rankings by reference to age show a wide range of ages at all levels of the rankings.

So not only has he failed to meet the initial burden of proof which falls on him, the further investigation of the complaint served to absolutely defeat any suggestion of less favourable treatment.

The evidence of the respondent witnesses convincingly rebutted any suggestion of unfairness at any stage of the process.

Indeed, the complaint is quite misconceived.

The complainant’s perhaps understandable disappointment at his lower than expected ranking led him to look for any remedy and the age discrimination option clearly presented as the most likely option. He could not accept that an independent assessment of his skills and experience which did not match his own could be explained by anything other than unlawful discrimination.

But even looking at his own lengthy submission, discriminatory treatment on the age grounds does not feature. Not one of the five grounds summarised above in his complaint relates to discriminatory treatment; rather they are complaints about the process, the competence of the respondent etc.

Only a very generalised complaint that the interview board ‘was biased against older candidates’ refers to what ought to be the central core of a complaint under this Act.

However, the complainant has utterly failed to establish any prima facie case beyond this rather fanciful speculation and his complaint fails.

For the reasons set out above I do not uphold complaint CA-00013010 and it is dismissed

Discrimination, access to employment, prima facie case