EDA196

The Adjudication Officer found that the complaint was not well-founded.

Background

The Complainant applied for the position of Veterinary Inspector which was advertised by the Respondent on the 19^thOctober 2016. This post had a new retirement age of 70 and the Complainant was 64 at the time he applied for the competition. The Complainant was invited to and attended at an interview on the 14^thMarch 2017. On the 2^ndof May 2017 the Complainant was advised by the Respondent that he was successful and had been placed 87^thon the panel. It is the Complainant’s contention that as he held the qualification of Official Veterinarian he should have been placed higher on the panel. It is the Respondent’s position that there was no requirement to hold that particular qualification in order to be eligible to apply for the competition. The Complainant lodged his claim with the WRC on the 23 May 2017.

Complainant’s case

It is the Complainant’s case that he was discriminated against by the Respondent on the ground of age when they failed to take appropriate account of his qualifications in the interview process. It is the Complainant’s contention that some of the duties listed as part of the advertisement process for the Veterinary Inspector posts are duties that can only be carried out by official Veterinarians. It is also his contention that that particular qualification is generally held by older Veterinarians and therefore, not including Official Veterinarian as a requirement and or not giving credit for it either in the interview process or later in not creating a separate panel for candidates holding that qualifications was discrimination on the grounds of age. The Complainant was 64 at the time of the competition and his comparator was 46. The Complainant’s comparator did not have the Official Veterinarian qualification but was place higher up the panel and has been appointed to a post. While the Complainant still retains his position on the panel he has not to-date been appointed.

Respondent’s position

The positions advertised and for which the panel was created were Veterinary Inspectors which are a generic grade. Applicants applying for those positions could have differing veterinary qualifications. The qualifications were only relied on to shortlist candidates and the Complainant was successful at this stage. The qualifications of the candidates who were shortlisted and progressed to interview did not attract any weighing for the purpose of the interview. The interview was based on performance on the day and candidates were marked accordingly. The Respondent disputes the Complainant’s assertion that holders of an Official Veterinarian qualification belong to a particular age category. It is their contention that in terms of those short listed for interview the age bracket with the highest number of applicants holding that particular qualification was the 31- 40 age bracket. The Respondent drew the Court's attention to appendix l of their submission where they had set out the information that they held in relation to the age of applicants. These records showed that the highest cohort of applicants short listed came from the Complainant's age group. In terms of candidates that were successful in being placed on the panel there was no divergence between the Complainant’s age cohort and other age cohorts. It is the Respondent's submission that no discrimination occurred, and that the Complainant’s complaint is misconceived.

The law

Discrimination in accordance with the Act is set out in s6 and states

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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,

  (b) a person who is associated with another person —

  (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

  (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

  ( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

  ( b) that they are of differentcivil status(in this Act referred to as “ thecivil statusground ”),

  ( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

  ( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

  ( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

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

  ( g) …….

  (2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

  (3)(a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

  (b)Notwithstanding subsection (1)and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

It is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies. In effect at that stage the Complainant is merely required to make out a ‘prima facie’ case.

In the instant case the Complainant puts forward as fact, that applicants in his age category were more likely to hold an Official Veterinarian than younger candidates. It is his contention that by not giving recognition for this qualification at interview stage and or not setting up a separate panel for candidates holding this qualification the Respondent discriminated against him on the ground of age.

The Respondent in response to this assertion confirmed to the Court that the highest number of applicants with that particular qualification belonged to a younger age cohort and regardless of that, qualification were not part of the marking scheme for the interview element of the process and therefore played no role in the Complainant’s placement on the panel.

Having carefully considered the submissions of the parties and the oral submissions made to the Court on the day of the hearing, the Court finds that in the circumstances of this case the Complainant has not made out a ‘prima facie’case and therefore his claim cannot succeed.

The Adjudication Officers Decision is upheld.

The Court so decides.



Signed on behalf of the Labour Court



Louise O'Donnell
12th March 2019______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.