Complainant

Respondent

Anonymised Parties

A Medical Doctor

A Medical School

Representatives

O'Mara Geraghty McCourt

M.P. Guinness BL Instructed by Peter Murphy, Solicitor.

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-00014754-001

03/10/2017

The complainant is a medical doctor who graduated in 2009 and who was continuing training with a view to qualifying in due course as a consultant. The dispute arises as a result of his failure to gain admission to a particular training course.

Traditionally, a candidate for higher surgical training would undertake research as part of a higher degree and undertake work as a registrar when applying for higher surgical training.

The respondent changed this system some years ago, so that senior House officers could apply direct for higher surgical training. Both schemes ran side by side during a transitional period. (For convenience hereafter referred to as the ‘old’ and ‘new’ schemes’.)

In general, this meant entry to the new system at a younger age as they had not been following the practise off undertaking research, working as a Registrar etc.

The complainant says that this resulted in him being treated less favourably than a younger candidate.

In particular, this arose from the fact that of seven candidates in the ‘new’ scheme all were successful, whereas only two out of nine on the ‘old’ scheme were successful.

He was initially denied detail of an appeal process, and this was only accommodated following representations from his solicitor.

Because, the candidates in the new scheme are in general younger, he says this constitutes discrimination which is prohibited by the Equality Act at sections 6(1) and (2).

The respondent says that the number of those who were successful on the new scheme is 50% and not 100% as claimed.

This is because those candidates are assessed for admission to the course over a two-year period. Fourteen trainees commenced the process and only seven were appointed.

Age is not a factor in the selection process. It is an objective process using a ‘multi factorial’ marking scheme.

In addition, candidates eligible for the ‘old’ scheme can apply at any stage over a number of years for consideration; their eligibility does not simply arise in a single year and indeed they can apply more than once.

The respondent says that new trainees have a 50% opportunity of progressing to the training, rising to up to 65 after their one and only second chance option whereas the ‘old’ system candidates have up to a 78% opportunity. The complainant would have had five opportunities to apply but for the fact that he had not completed certain of the modules satisfactorily, and would otherwise have been through the system in 2013.

The age gap between the two groups is insignificant. The average age of the group against which the complainant says was more favourably treatment in 29.

The average age of his group is 32.

The complaint is on the grounds of age.

The Employment Equality Acts defines, at section 6, discrimination as occurring where one person is treated less favourably than another is, or has been or would be treated on any of the nine discriminatory grounds.

Section 6 (2) provides that as between any two persons, the discriminatory grounds includes ‘that they are of different ages and Section 33 of the Act applies the definition of ‘indirect discrimination’ to a situation where an apparently neutral provision puts persons of a particular age at a particular disadvantage in respect of any matter compared with other employees of their employer.

One difficulty that arises in respect of age is that a variation in age may be either very great or very small in a way that does not apply to any of the other grounds; e.g. where gender is concerned the differences between a complainant of one gender and a comparator of another are quite clear; likewise with the other grounds.

That said the Act defines the discriminatory ground in question simply as that (the complainant and comparator) ‘are of different ages’

Thus, somewhat different issues arise where, in the course of a single episode an age difference of a relatively small nature constitutes the basis for the complaint; twenty-nine years as against thirty-four (although there was some discussion as to whether this was an accurate conclusion, the complainant says it is six years).

In any event, this is a factor to be considered.

Is it contended for the complainant that unless the outcome of the competition was an absolute equality in respect of age, surely a near impossibility in a process with many selection inputs, then unlawful discrimination can be said to have occurred?

The position is further complicated by averaging. The average age in the ‘new’ group was twenty-nine. In the complainant’s group it was thirty-four or thirty-two depending on how it was counted.

Within the ‘younger’ cohort (the ‘new’ group) there were candidates who were thirty-one and thirty-four, within the ‘older’ one four candidates were thirty. But, there is no doubt that the average age in the ‘new’ group was some years older than the complainant’s.

In considering this, the only evidence offered was in respect of a single year, and indeed the system which gave rise to this complaint is no longer in use as the transition period for the two systems ended in July 2016.

In my view, while the complainant has made out a prima facie case it is insufficient to ground a complaint of unlawful discrimination on the age ground for the following reasons.

The divergence in the ages submitted by the complainant does not provide a persuasive argument for three reasons which must be taken together; the sample is too small, it is based on only one episode and the divergence in the ages is relatively small.

In The Nationalist & Leinster Times v Ashmore [2013] ELR 216 the Labour Court stated that statistics must be sufficient to make a statistical analysis viable. In that case the Court was of the view that the numbers being referred to were ‘so small as to make any such statistical analysis meaningless and inherently open to distortion by a minor variation either way’.

(From ‘Employment Law’, eds Murphy, Regan 2017 p 591.)

While that statement may not apply precisely to the current case the general principle enunciated there does apply and again must be seen in the context of the fact that the divergence in age is not exactly generational.

Two of those appointed from the new group were older than four of those who were from the ‘old’ group. For balance, I add that all the others appointed from the new group were younger than the youngest member of the ‘old’ group. But, this is verging on cavilling, rather than statistical analysis.

If the difference was a direct one between men and women, for example, it would clearly be different, because the difference between men and women is obvious. In my view a difference between a twenty-nine year old and a thirty-five year old on the facts in this case is insufficient, taken with the other facts in the case to support the complainant‘s case.

In most cases of age discrimination there is a clear ‘generational factor’; and most cases concern, on the one hand generally older workers in relation to retirement for example, or, on the other hand generally younger workers in relation to promotion, conditions of employment, to also take but an example. It is hard to imagine that the legislature envisaged acts of discrimination as between the age cohorts on which the complainant in this case relies, unless, at the very least it met the statistical standard set by the Labour Court above, and a convincing picture of discrimination on the grounds of age could be discerned or inferred.

Further, the Labour Court has considered actual age differences in the past. In Freeman v Sean Quinn DEE02/1 the age difference in question was three years (31 v 28) and the Court found that this was insufficient to ground an age discrimination complaint in the absence of other facts to indicate age discrimination.

In Reynolds v Limerick City Council ADA0712 (18 July 2007) it held that a seven year gap (45 v 37) was sufficient. While even this age gap is described as ‘minor’ in ‘Employment Law’, op cit [17.208] the authors (M. Bolger C. Kimber, C. Bruton), note that the complaint related to promotions in the fire service where early retirement was a relevant factor.

So, it is clear from these authorities that any age gap will not suffice, and indeed common sense would lead to the same conclusion.

There is a good deal of objective justification offered by the respondent for need to reform and improve the training system, and therefore for the resulting discrepancies, which were of a transitional nature.

Most importantly, the very objective of the change to the ‘new’ system was precisely to shorten the length of time it took to become fully qualified. This was not insignificant; the intention is to shorten the qualifying period from thirteen years to eight.

According to the respondent it was precisely to avoid the necessity for candidates in training to have to spend years in internships and to both improve the quality of training and create better work/life balance for those going through it.

There were particular factors in relation to the complainant himself, whom it might be said found himself in the position he was partly because of his failure to achieve the learning objectives of earlier phases of his training. Otherwise he would have been eligible to apply several years earlier and have had five separate opportunities to apply.

Potential candidates were told that for a transitional period there would be a dual entry system. Inevitably, it resulted in some divergence in the age of the applicants, although of those in the ‘old’ group three had applied on two previous occasions (so three times in total) and one twice in total.

The respondent also says that for the duration of the transitional arrangement the overall number of posts was increased to ensure that candidates were not at a disadvantage.

These are persuasive arguments and while I do not find that the system represented unlawful discrimination for the reasons set out above these arguments are also persuasive as representing objective justification.

Accordingly, the complaint does not succeed.

For the reasons set out above I do not uphold complaint CA-00014754-001 and it is dismissed.

Age discrimination.