Complainant

Respondent

Anonymised Parties

A Job Applicant

A Health Service Provider

Representatives

Health Business Services

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-00012687-001

20/07/2017

The complainant applied for three positions with the respondent and failed to be called for interview for the three roles. He claimed that he had been treated unlawfully by discriminating against him in getting a job by reason of his age as he was older than successful candidates.

The complainant requested that the decision be anonymised. The complainant applied for three different positions with the respondent (Role X, Role Y and Role Z) in the area of IT. He was not shortlisted for interview for any of the roles despite him being well qualified with over 20 years’ experience and achieving many academic qualifications. He detailed that he had been treated unlawfully by discriminating against him in getting a job by reason of his age.

He appealed the decision to the respondent but his appeal was rejected on the basis that the proper procedure was followed.

The complainant detailed that a section of the application form called the Equality Monitoring Form requested information about applicants including their date of birth. He detailed that it was not stated if this form was optional. By completing it, the respondent, therefore, knew his age and he believed this was why he was not shortlisted for the roles.  

On 8th June 2017 the complainant sent an ES1 form to the respondent which was not replied to and this was followed up with an ES2. The complainant outlined that the failure of the respondent to engage with him and reply to his questions as well as their disregard for legislation, case law and their own equality guidelines has meant that resulting statistics alone are insufficient to rebut the claim of discrimination. He raised many questions including whether the equality monitoring form is voluntary or obligatory, whether it is a requirement for all roles as well as questioning why only gender and date of birth are asked about on the form. A copy was also provided of the respondent’s Guidelines on Equal Opportunities Aspects of Recruitment, Selection and Promotion and the complainant pointed to areas where the respondent had deviated from their own policies.

Case law cited included Galway City Partnership v O’Halloran and EDA0715 Horgan v DCU, as well as EDA0712 Johnston v Louth VEC.

Following the hearing the complainant forwarded additional correspondence some of which was in reply to correspondence received from the respondent. His response included his unhappiness that the respondent had not provided their submission in advance of the hearing albeit he accepted that he had been given an opportunity to review same by way of an adjournment which he had declined. He also detailed that there was a statistically better chance of being short listed if candidates had provided a date of birth which pointed to the discriminatory aspect of the recruitment process.

In response to correspondence from the respondent detailing why his ES1 form had not been responded to, the complainant outlined that the failure of the respondent to reply to him at the time impacted on his ability to prepare for his hearing. This was what the complainant described as the respondent’s “lax approach when handling complaints” and he questioned how isolated such incidents were.

The respondent sought clarity from the complainant, regarding whether his claim was that he was discriminated against because of being younger or older than the comparator group. Upon clarification that it was on the basis that the complainant was discriminated against for being older, the respondent outlined that the cohort of applicants put forward for interview, comprised some older than the complainant and some younger.

In response to some questions raised by the complainant, the respondent replied that data provided was raw data and that not all candidates gave their date of birth.   It was highlighted that the complainant’s age at the time was in line with the average age of applicants.   Those called for interview included applicants older than the complainant. Some applicants, older than the complainant, were successful at interview and panelled and it was pointed out that neither the decision makers who selected for interview nor the interview board members would have had access to the data provided in the Equality Monitoring Form.

With regards to Role X, the complainant’s age was 48 at application and the average age of those panelled was 49.2 years with the average age of those interviewed detailed at 47.6. 18 out of 63 applicants did not provide details of their date of birth.

With regards to Role Y, the complainant’s age was 48 at application and the average age of those panelled was 52.2 years with the average age of those interviewed detailed at 48.8. 5 out of 16 applicants did not provide details of their date of birth.

With regards to Role Z, the complainant’s age was 48 at application and the average age of those panelled was 56.2 years with the average age of those interviewed detailed at 50.2. 4 out of 21 applicants did not provide details of their date of birth.

The respondent detailed that while an initial ES1 form was submitted by the complainant, the Equal Status Acts had no relevance in the instant case which rested on an employment matter. It may have been for this reason that the respondent failed to reply to the ES1 form and it was accepted that the respondent had failed to identify a lead person within the respondent to respond formally to the claim and they apologised for their failure to do so.

That aside it was put forward that the respondent’s selection process was untainted by age discrimination as there was no correlation between the ages of candidates and the outcome of the short-listing process. The respondent detailed that they were not suggesting that the complainant was not suitably qualified for the roles.   However, based on his application form, he failed to failure to demonstrate, meeting a single selection criteria requirement in relation to two of the roles and a failure to demonstrate meeting any of the five selection criteria for the third position.

Case law cited included EDA1726 A Board of Management and A Workerand ADJ-00006574 A Clerical Officer and a State Body.

It was put forward that “all of the candidates had an age” as detailed in EDA1726 and that the complainant had not met the three-tier test as he was similar age to several candidates. Furthermore, the option to provide date of birth is asked for a valid reason and is kept separate from the selection process and the complainant was close to the average age of those who progressed to interview stage.

The complainant referred complaints pursuant to the Employment Equality Act on the grounds that he was discriminated against because of his age, namely that he was older than those more successful. The respondent denies the claims. Both parties made detailed written submissions both before, during and after the hearing which I have taken account of and I have exercised my discretion and anonymised this decision. Following the hearing it was discovered that a submission received from the respondent after the hearing inadvertently failed to be copied to the complainant.   When this was discovered a full review of all documentation received from the parties was undertaken by the WRC which confirmed that this was the only submission received which had not been copied to one of the parties. A copy was subsequently sent to the complainant who was given an opportunity to respond. Both parties were given an opportunity to consider and reply to all submissions received.

Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Southern Health Board v Mitchell [2001] ELR 201 sets out the three-stage test: - 1. “The complainant must prove the primary facts upon which they rely in alleging discrimination, 2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination 3. If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.”

Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts 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.”

Section 6 (1) of the Act outlines that

discrimination shall be taken to occur where —

( a ) 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) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

It was accepted that the complainant applied for three positions that had been advertised and failed to be called for interview in relation to all three roles. It was accepted that the complainant has significant experience and has achieved many academic qualifications. The respondent detailed, however, that he was not called for interview owing to his failure to demonstrate meeting a single selection criteria requirement in relation to two of the roles and a failure to demonstrate meeting any of the five selection criteria for the third position.

The complainant informally appealed this which was not upheld and subsequently formally appealed this which was not upheld. An ES1 form was submitted which was not responded to. It is regrettable that the respondent failed to follow their own procedure in relation to receipt of this ES1 form which may have assisted the complainant in his understanding of his failure to be called for interview.   I note their late apology in relation to this.

Much of the complainant’s submission centred around the request by the respondent for candidates to complete a document for the purpose of equality analysis which included asking for candidates’ date of birth. I note that it states on the form “candidates please note this data is for administrative records only, and does not form part of the information submitted to the interview board.” It isregrettable and indeed surprising that it does not detail whether candidates are obliged to complete this. I note, however, that a number of candidates did not complete this form and were called for interview.

Seeking a candidate’s date of birth on an application form has been held to be discriminatory in Cunningham v CMS Sales Limited where the Equality Officer found that the complainant had established a prima facie case of direct discrimination on grounds of age in relation to access to employment in that it had sought the complainant’s age and date of birth the registration form and subsequently pursued the matter with him. However, a clear difference is that in the matter of Cunnigham v CMS Sales Ltd the respondent clearly pursued the matter with him and he lost out on job opportunities owing to his refusal to furnish his age. I do not find that this has occurred in this instant case.

While there was much statistical analysis provided during and after the hearing, I note that for Role X, the complainant’s age was 48 at application and the average age of those panelled was 49.2 years with the average age of those interviewed was 47.6. For Role Y, the complainant’s age was 48 at application and the average age of those panelled was 52.2 years with the average age of those interviewed was 48.8. Finally, for Role Z, the complainant’s age was 48 at application and the average age of those panelled was 56.2 years with the average age of those interviewed was 50.2. I also note that 27 out of 100 applicants completed the equality monitoring form, some of whom were called for interview.

In the case of Nevin v Portroe Stevedores, the Labour Court has stated in relation to age discrimination:

“… evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been untaken.”

I do not find any evidence that the complainant was treated less seriously than those of a different age.

I would strongly recommend that the respondent review whether the data detailed on the Equality Monitoring Form is even necessary particularly when they have stated they only look for limited information as their previous experience has shown that applicants have not been inclined to provide anything else. If it is deemed necessary to source this data from applicants, I recommend that this should be separated out from the application form with its clearly stated purpose.

I further recommend that it should clearly state that completion of this form is completely voluntary.

While the above are my recommendations owing to certain shortfalls in the procedures of the respondent, I find that having reviewed the evidence in its entirety, the complainant has not established a prima facia case of discrimination and his claim is not upheld.

The complainant has not established a prima facia case of discrimination and his claim is not upheld.

Discrimination, age, equality, recruitment