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-00015920-001

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00015920-002

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00015920-003

21/11/2017

This case originated from a seven-month period of employment for the complainant who worked as an Information Officer with the Respondent. He worked a 35-hour week in return for 2458.08-euro gross pay monthly. The Respondent operates a Phone Information Service and has refuted the claims.

The Complainant, a Solicitor, represented himself and submitted supporting documentation with his complaint form. He submitted two written submissions, gave oral evidence at the hearing and responded to the Respondent written submission.

The Respondent was represented by Counsel and Solicitor and submitted a written submission which refuted the claims. The Respondent presented 2 witnesses, The Company Secretary and the Team Supervisor to the hearing.

As the case incorporates three complaints, one of which is an Employment Equality complaint, I have exercised my discretion and anonymised the entire decision.

CA-00015920-001 Employment Equality Act Complaint:

The Complainant introduced his case by outlining that he had worked for the Respondent on a Fixed Term Contract from 16 January 2017 to 18 August 2017.This was to cover a maternity leave. He submitted that he had been discriminated against on grounds of gender, age and disability in getting a job. He cited the most recent date of discrimination as 3 July 2017.He named a comparator, Ms A, whom he stated was in 40’s age bracket.

The Complainant outlined that he had been hired in January 2017 together with three females. In or around June 2017, the Respondent advertised for applicants for a panel from which further fixed term workers would be selected as the need arose. The January hires, including the complainant were advised to resubmit application forms for these positions.

The Complainant attended his performance review meeting at the end of May 2017 and was informed that he could recycle his initial application form and amend with updated training and experience in doing the job. He stated that he was informed that he would most likely go forward to the panel given the Respondent had already made an investment in his career. He relied on this suggestion and commentary. He retrieved the old application form and added in 3 references. He didn’t know if the other three employees were told the same. He scored 58.

The Complainant was informed that he had not been selected for interview for the panel positions on June 20. He understood that the shortlisting was completed by his Team Supervisor, Mr A, The Acting Manager, Ms B and another Manager, Ms C, who all had access to his personnel file. He learned that his co hired female colleagues had been selected for interview and went on to achieve panel places and subsequent continuous employment. He expressed his disquiet.

The Complainant learned that the Respondent had identified a failure on his behalf to “indicate my competence on my application form”. The Complainant took issue with this judgement and on August 4,2017 he submitted a letter of complaint to the Chair of the Board of Directors for the Respondent. He submitted that it would have been fairer to bind performance to the selection process. He stated that he did not understand “competence indicators”. He highlighted the marked differential in how his 2016 application was marked in relation to his 2017 application. He submitted that had the service wanted to retain him, they would have found a way. He was struck by being placed No 5 of 140 applicants in 2016 and now he had been left out completely. He was aware of a Gender imbalance of 3:1 in favour of females at the Respondent business. He had applied for interview training but was questioned whether there was any point in him attending?

The Complainant submitted that he had proved his competence through successful sequential performance reviews and was wrongly rejected at the short-listing stage. He had scored 53% in response to a Customer Service question in 2016 competition, yet a mirrored response in 2017 yielded a 30% marking. He was confused by this apparent inconsistency.

The Complainant submitted that he had been compelled into unemployment ,had been at a financial loss and was living on a restrictive income per week .He had really enjoyed hi work and understood that he had been successful .He had hoped that his association with the respondent would be long lasting as he was too young for pension .He submitted that he had been treated less favourably .The position sought was titled Information Officer, identical to the position he held   at the moment of application .

On 25 August 2017, following the failure of the service to engage and respond to his letter of complaint date August 4, 2017, the Complainant submitted an ES1 form to the Respondent. He claimed that he had been discriminated against on grounds of age and disability. He did not believe that he had a disability but felt that the respondent perceived that I had one and disability was imputed to him. The Complainant tabled four requests for further information surrounding the viability of the selection of candidates for interview. He was troubled by the last of response to his August 4 letter. The Complainant confirmed that he had not submitted a grievance prior to his finish date.

He received a response on an ES2 form dated 20 October 2017.The Respondent outlined that recruitment was carried out in line with best practice, Equal Opportunities and where positions are selected through open competition.

The Complainant was informed that his shortlisting assessment indicated a score below the cut off point for interview selection .The Recruitment process was outlined on a staged basis .The Respondent disputed that past performance was a fair and reasonable way of assessing an employee’s potential contribution to the service or was a sufficient measurement as it was not prescribed in the governing policy .The Respondent concluded that the Equal Status Acts related to the provision of services .

The complainant contended that reasons given for his exclusion did not stand up to scrutiny and masked the real reasons of discrimination. He stated that he was 61 years old and had been hospitalised in May 2017 and diagnosed with a heart complaint. He stated that this was held against him by the respondent imputing him with a disability.

The Complainant contended in his responding submission that there was a substantial “material difference” between internal applicants who have the benefit of specific training and experience, and who have proven their competence (or not) on the job and external candidates. He argued that the selection process was unfair and tainted by discrimination as his proven competence in the role was disregarded in the short-listing process.

The Complainant also submitted that his three co hired colleagues received an extension on their fixed term contracts to manage the “turn over “period in contract renewal and he had not been granted this extension.

The Complainant undertook to submit details of his cited Comparator, Ms A. He submitted that he was not bound to submit a named ground of discrimination under the umbrella of Section 8 of the Act.

CA -00015920-002 Terms of Employment Complaint:

The Complainant submitted that he had not been notified of a change in his terms of employment. He outlined that the “Staff Handbook “states that “Employment opportunities are open to all qualified applicants solely based on their experience, aptitude, abilities and qualifications as demonstrate at interview “

The Complainant stated that he was denied an opportunity to be included in a new panel for the position of Information Officer as he was denied an interview. He contended that his exclusion was prohibited under his contract of employment and a term of his contract was breached. He submitted that he was entitled to be interviewed and Section 8 of the Employment Equality Act stood in contravention.

CA-00015920-003     Fixed Term Complaint:

The Complainant submitted that he had been denied an interview for inclusion in an employment panel which proved that he had been treated less favourably than a permanent worker. The Complainant raised at hearing that he had been penalised by the Respondent as his work record was disregarded for the purposes of the 2017 Interview process for the position of Information Officer.

He submitted a name of a comparator, now retired.

CA-00015920-001 Employment Equality Act Complaint:

It was common case that the Complainant commenced employment as an Information Officer on a fixed purpose contract, covering maternity leave. The employment ended by agreement on 18 August 2017.The Respondent accepted that the claim was properly under the Employment Equality Act and sought a named comparator from the Complainant.

The Respondent denied that the complainant had been discriminated against or that the application form for the 2017 Information Officer competition had been defective or discriminatory.

In July 2017, the Respondent undertook a recruitment campaign via open competition and a shortlisting process. The Respondent is obliged to seek approval for all competitions.

The candidates for the position are required to apply using a template based on competency based assessment. This is to aid the shortlisting process as it would be impractical to interview all applicants.

The Respondent submitted that the objective of the recruitment and selection policies is the appointment of the most suitable person for the post based on the competencies required for the post. Each application is studied and matched against those competencies and only those who best match the job requirements will be interviewed. The recruitment campaign is unique and each applicant is considered within the respondent recruitment process of:

1.       Application form

2.       Shortlisting

3.       Qualifying for Interview,

4.       Placement at interview

5.       Stages of recruitment/panelling /unsuccessful.

The respondent launched a recruitment campaign in July 2017 and all four January 2017 hired staff applied. The Complainant had been offered interview skills training prior to the campaign and at fist indicated that he would attend but subsequently declined.

The Respondent presented a copy of the shortlisting assessment where the claimant was scored at 56 out a possible 120. The benchmark of 80 was a handwritten addition. The Respondent submitted that the complainant had been provided with the marks and comments related to the May 2017 application.

The Respondent outlined that the November 2016 recruitment campaign involved 140 applicants. The minimum score for shortlisting was 43 and maximum score achieved was 105.24 applicants interviewed and 10 were panelled. The Complainant recorded a 58.5/115 score. The three females cited by the complainant scored 46.5,53, and 48.

The Respondent went on to outline that the July 2017 competition involved 301 candidates. The minimum score for shortlisting was 80. The maximum score was 110. Twenty-one candidates were selected for interview and 12 were panelled. The complainant scored 56/120 at shortlisting and the female candidates referred to scored 83,95, and 102. Both Application processes were overseen by different Managers on behalf of the respondent.

In 2016 24 candidates were short listed 9 Male :15 Female

In 2017 21 candidates were shortlisted   9 Male: 12 Female

The Respondent submitted that while the Complainant submitted an ES1 form, The Equal Status Acts had no relevance in the case which rested on an employment matter.

The Respondent referred to the burden of proof in accordance with Section 85A of the Act in contesting the claim of discrimination. Counsel outline that the complainant had initially made a complaint on ES1 form which incorporated age and disability a later appended the gender complaint on his complaint form to the WRC. While the Respondent accepted that the complainants heart condition could be accepted as a disability, the complainant had chosen not to lead with this argument and instead argued that a disability had been imputed to him. The Respondent contended that the shortlisting/interview personnel were not aware of his condition.

The Respondent pointed to a lack of detail on a comparator for the purposes of the case.

AGE: 27 Employees AGES 27-67

60 age brackets       2

50 age brackets       5

40 age brackets   7

30 age brackets     10

The Respondent disputed that age had anything to do with the complainant’s failure to progress past the shortlisting stage and argued that he had been hired six months previously without any reference to age. Age/ Date of Birth were not components of the application form was not

The Respondent acknowledged that the complainant had expressed a very strong belief in his suitability /competence for the role of Information Officer and that he ought not to have been discarded having achieved key experience and knowledge. However, the Respondent maintained that the shortlisting process was applied identically to all applicants and past performance as an Information Officer was not a specific consideration and no weighting was assigned to this at shortlisting stage.

The Respondent disputed the scoring variance submitted by the complainant in Customer Service questions. The Complainant scored identically in one question in 2016 and in two others he surpassed his 2016 score in the 2017 competition. He did not secure the benchmark established for progression to interview which was marked at 80, an increase from the 2016 competition.

The Respondent cited Cotter v Cork College of Commerce DEC E 2010-097, as authority for the proposition that that access to employment does not encompass future employment.

In relying on De Butleir v Revenue Commissioners DEC -E2011-107, which commented on the role of the Equality Officers and Labour Court as purveyors of clear evidence of unfairness in a selection process or manifest irrationality in a result rather than becoming engaged on who the meritorious candidate should be, the Respondent sought to apply the facts of the case to a large body of jurisprudence.

The Respondent denied imputing a disability to the complainant in relation to the shortlisting process. They undertook to furnish details of the complainant back to work meeting post his his day illness in May 2017.

The Respondent sought that the case be dismissed as the Respondent made its decision not to interview the complainant on the same basis as all decisions made in respect of the field of applicants.

The Respondent contended that the marking was consistent, clear, fair and competency related and was not tainted by discrimination on any of the grounds cited. The Application Assessment Team did not have access to the complainant’s date of birth, health file, human resource file or employment history. There was no provision for health or age details on the application form and these could not have been considered in the shortlisting process.

The Respondent submitted that the Complainant had not identified comparators in respect of the three aspects of his complaint.

Evidence of Mr A, Team Supervisor:

Mr A had worked over 13 years for the Respondent. He described a good working relationship with the complainant who had progressed well in probation. He was aware that many staff occupied temporary roles which caused them some frustration. At the end of a probation meeting with the complainant, he mentioned that the deadline for applications for Information Officer jobs was approaching. He observed that the complainant was surprised that he would have to apply. The complainant had retained his 2016 application form and saw it as adding value to the process as the service would likely want to retain a self-advocate.

The Complainant was unsure as to whether to apply. The other candidates were not on his team. Mr A went to Interview Skills/ competency based interview training and thought it excellent.

During cross examination, Mr A denied telling the complainant that he would be a “shoe in “for the July competition. He did not deny saying that he could use the 2016 application. Mr A confirmed that he   saw probation and shortlisting as two separate issues. He left it up to the complainant whether he attended interview training or not.

He had no role in the competition after the shortlisting process.

CA -00015920-002 Terms of Employment Complaint:

I have heard both parties on the details of this complaint. The Respondent has rejected the claim and dealt with it by way of oral submission. I have consulted the staff handbook dated April 2013 where the recruitment policy and equal opportunity policy are set out collectively on page 6. It is important to read both sequentially. The Respondent displayed a policy of open recruitment.

I could not establish a breach in Section 5 of the Act. I could not identify any change made in any of the terms of the staff handbook from April 2013. Both parties submitted that version.

I can appreciate that the complainant was devastated to be excluded from the Information Officer competition in July 2017 at the shortlisting stage, however, an automatic passage to interview was not an express or implied term of the contract and an extract from the Recruitment Policy.

“Accordingly, our organisation is committed to recruiting the right people into the right job at the right time in a fair and consistent and cost-effective manner in furtherance of this, it undertakes to ensure all appointments and promotions are made based on clear and justifiable job-related criteria”.

I did not find any changes made as set down in section 5 of the Act.

I have found the complaint to be not well founded.

CA-00015920-003     Fixed Term Complaint:

The Respondent submitted that the Complainant had not complied with Section 5 of the act by omitting to put forward a veritable comparator. Counsel for the Respondent submitted that no contravention of the Act had occurred.

Findings and Conclusions:

CA-00015920-001 Employment Equality Act Complaint:

I have listened carefully to both parties’ oral submissions and I had considered the written submissions which accompanied the case. An issue arose at hearing where the complainant expressed an ongoing desire to resume work with the Respondent. The Respondent, in turn confirmed that recruitment was ongoing an advertisement appeared on their web site. The complainant contacted the WRC post hearing to follow up on this, but it has no bearing on this case and is external to the process.

The Complainant has advanced his complaint on three grounds, gender, age and an imputed disability. He has submitted that he was treated less favourably than Ms A and yet provided insufficient detail on Ms A as a comparator.

Section 6 (1) of the Act sets out that Discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation.

Section 8 of the Act sets out that Discrimination is prohibited in relation to (a) access to employment …. (e) classification of posts.

Section 8(5) of the Act provides that an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment in (a) in any arrangement the employer makes for deciding to whom employment is offered.

On his complaint form, the complainant dated the most recent date of discrimination as July 3, 2017

The exercise of comparison is central to the case as during my investigation, I explored whether a connection existed between the treatment complained of i.e. exclusion from interview and the individuals protected characteristics? All I had to go on in the cited comparison was that Ms A was in her 40’s. I found it was insufficient. The Complainant undertook to submit additional details on the comparator, but this did not follow.

In analysing the facts of the case, I accepted that the complainant possessed the grounds to proceed with his case in accordance with Section 6(2) (a), (f) of the Act. I had insufficient information on which to include Section 6(2) (g) on disability.

I have established that the complainant really enjoyed his job with the respondent and this was firmed up by the positive endorsements of his performance to a very high level. The Respondent did not dispute the status of the performance reviews but chose to differentiate the performance reviews from a fresh competition to assemble another panel for Information Officers.

It was clear to me that a large contributing factor to the evolution of this complaint lay in the repeated competitions and short duration of panels. I appreciate that the complainant may not have worked for a quasi-government body in the past, but I could see that the bureaucratic process of hiring and rehiring for the same position was a “head spinner “for him. The Complainant interpreted that his 2016 success and subsequent competence ought to have anchored his place with the respondent and was truly shocked when his application did not make the short-listing stage.

I found it regrettable that the respondent took a somewhat defensive approach to the complainant’s letter of complaint dated August 4, 2017. This should have provided an opportunity to sit down with the complainant and explain the differential in the critical mass of both application cohorts 2016 and 2017 and the commensurate elevation of the benchmark for interview and if necessary re-enforce the ongoing nature of competitions. The matter was not assisted when the ES1 form followed and was engaged with by the Respondent. Both parties ought to have had an awareness that this was the incorrect procedure and legislation.

However, I appreciate that this is an Industrial Relations backdrop to the case and the complaint before me is raised on equality grounds.

The Complainant is faced with a strict burden of proof in this case as set down in Section 85A of the Act. Facts must be established by or on behalf of the complainant from which it may be presumed that discrimination has occurred. It is then the turn of the Respondent to counter act or disprove those facts. It follows that a complainant must establish the primary facts upon which he relies upon, those facts must be of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, the Labour Court stated in this regard:

·         “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In the instant case, the complainant presented that he was sure that “something was behind “his exclusion from the interview process and that that something must have been his age, gender or imputed disability.

I looked at this carefully, mindful that my role is not to interfere with the results a competition unless I found signs of irrationality, discrimination. I noted that the complainant clearly expressed a lack of awareness of competency based assessment for interview purposes. I found that this led him to confuse his undisputed competency in performance terms with what the employer was seeking in terms of a highly scientific competency for shortlisting process. Therein lies the central core of the case. They were two separate and distinct processes and while past behavior leads itself to guiding future performance, the process of short listing was a standalone process. I found that the complainant missed this.

I am satisfied that the complainant was provided with the same application form as other candidates. He also received the shortlisting criteria. The Complainant submitted that he was at a disadvantage as he accepted Mr. As suggestion that he resubmit his 2016 application, whereas the other internal applicants appeared not to have followed this course of action, given their improved marking on 2016 competition.

I am troubled by the complainant suggestion that internal and external candidates should have been distinguished for competition purposes. The Respondent had announced an open competition, it would surely have been unfair and open to challenge as reverse discrimination to “weight “the applicants on point of origin?

I note that the Complainant did not participate in the Interview training. I cannot accept that Mr. A should be blamed for his decision not to participate. The complainant could have been more autonomous and self-determinant in this regard.

The Respondent has outlined the application process, placing special emphasis on the vast increase in applicants over the two competitions and the variant in the threshold to interview. It set out in detail where the complainant had variant scores to other candidates .The Respondent was clear that there was no disparity in treatment of the candidates and the non-progression to interview in the complainants case was grounded in objective reasons not tainted by discrimination .The Respondent was highly complementary of the complainants performance at work but equally commented that the same precision was not applied by him to the application process .The Respondent was fulsome in reminding the complainant of ongoing competitions for the role of Information Officer .

The case law advanced by the Respondent refers in the main to promotional positions, this was an application for continuation in employment.

In Alexion International Pharma Trading and Alan Bermingham EDA 1816, the Labour Court, earlier this year considered an analogous case where this time a job applicant was called for interview, then placed on hold and non-progression, the complainant alleged age discrimination. the Labour Court determined that it was satisfied that the complainant had not established facts from which Discrimination could be inferred.

……. the Court notes that the job specification for the Artwork Specialist role did not state that candidates must have worked in the pharmaceutical industry, however, it did state that candidates must have “experience with management of pharmaceutical product artwork across multiple regions”. While the Complainant had worked in the printing and packaging industry, which included managing artwork for firms in the pharmaceutical industry, he had never worked in the pharmaceutical industry itself. The Respondent told the Court that it had two strong candidates with significant relevant experience of working in pharmaceutical companies, specialising in packaging artworks and design and with regulatory experience in that sector. For that reason, the Respondent stated that the Complainant’s scheduled phone screen interview had been cancelled and it proceeded with haste to appoint one of the two strong candidates to the role and that person remains with the Respondent to this day. In such circumstances it is difficult to see how the Respondent’s decision not to proceed to interview the Complainant was influenced by his age. Furthermore, the Court notes that the age spread of the staff of the Respondent shows no signs of age discrimination in its employment practices.

In the instant case, the Respondent confirmed that 2 staff were in their 60’s, 5 in 50’s range, 7 in 40’s range and 10 in 30’s range, this constituted an expansive spread. I could not establish that this signaled hall marks of age discrimination. I also noted that the 12 empaneled applicants formed a 50:50 spread between male: female.

Taking everything into consideration, I have found that the Respondent ran an open competition in accordance with their stated and agreed policy and issued application forms in a uniform fashion to all applicants. No one was entitled to an interview and all candidates had to submit to the short-listing process which was completed by a three-person team. Many were unsuccessful at this stage due to the revised benchmark for progression of 80. I am satisfied that date of birth was not mentioned on the application form. An Interview was conditional on passing the short-listing bar.

I could not establish that the complainant was treated less favourably on age or gender, I had very little details on his cited comparator, Ms. A. Instead, I found that his inadvertent lack of preparation for this process may have contributed to his non- progression. I say this as I am guided by the evidence where Mr. A confirmed that the complainant initially expressed a belief that he shouldn’t have to shouldn’t have to submit an application form, given his existing employment. I am also guided by his decision not to participate at interview training. I appreciate that competency based assessment for shortlisting purposes is vastly different to performance review in which the complainant clearly excelled, however, it may have assisted in building an awareness of the process as a springboard.

I have concluded my investigation and found that the complainant has not established facts from which discrimination can be inferred. He has not satisfied the burden of proof in the case.

CA -00015920-002 Terms of Employment Complaint:

I have heard both parties on the details of this complaint. The Respondent has rejected the claim and dealt with it by way of oral submission. I have consulted the staff handbook dated April 2013 where the recruitment policy and equal opportunity policy are set out collectively on page 6. It is important to read both sequentially. The Respondent has a policy of open recruitment.

I could not establish a breach in Section 5 of the Act. I could not identify any change made in any of the terms of the staff handbook from April 2013. Both parties submitted that version.

I can appreciate that the complainant was devastated to be excluded from the Information Officer competition in July 2017 at the shortlisting stage, however, an automatic passage to interview was not an express or implied term of the contract and an extract from the Recruitment Policy. I did not find any changes made as set down in section 5 of the Act.

“Accordingly, our organisation is committed to recruiting the right people into the right job at the right time in a fair and consistent and cost-effective manner in furtherance of this, it undertakes to ensure all appointments and promotions are made based on clear and justifiable job-related criteria”.

I have found the complaint to be not well founded.

CA-00015920-003   Fixed Term Complaint:

I have listened carefully to both parties’ submissions in the case.

For the purposes of the Act, a fixed term worker is defined as:

 “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

I am satisfied that the complainant satisfies this definition. Section 6 provides for protection of a fixed term worker.

Conditions of employment for fixed-term employees.

6

6.— (1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

However, Section 5 of the Act sets out parameters on the detail of a comparable permanent worker necessary to ground the complaint. I have not received this detail. I must find that the claim is not well founded, I am unable to proceed.

Discrimination during Short listing, Terms of Employment, Fixed Term Employee.