FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : DEPARTMENT OF AGRICULTURE,FOOD AND MARINE (REPRESENTED BY DEPARTMENT OF AGRICULTURE,FOOD AND MARINE) - AND - ANDREW CONWAY DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No ADJ-00011134.
BACKGROUND:
2. The Claimant appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2015. A Labour Court hearing took place on 12th February, 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Andrew Conway (the Complainant) against the Adjudication Officer's DecisionADJ-00011134in his complaint of discrimination on the ground of age by the Department of Agriculture, Food and the Marine (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act).
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 Public Appointments Service on behalf of the Respondent on the 19thOctober 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 14thMarch 2017. On the 2ndof May 2017 the Complainant was advised by the Respondent that he was successful and had been placed 87thon the panel.
It is the Complainant’s contention that the Respondent discriminated against him when they appointed his comparator to a position on the 1stof October 2017 in circumstances where the Complainant believes that his comparator did not hold the qualification of Official Veterinarian and was therefore, not qualified to be appointed to the post. 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 2ndof October 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 appointed his comparator who was a number of years younger than him to a post which the Complainant alleges the comparator was not qualified for. It is the Complainant's position that as the comparator did not hold the qualification of Official Veterinarian he should not have been appointed to the post
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 weighting for the purpose of the interview. In appointing candidate to posts the Respondent requested the name of the next suitable candidate on the panel from the Public Appointments Service. The Respondent did not control the order in which candidates were placed on the panel. The Respondent disputed that the comparator was not suitably qualified. It was the Respondent’s position that all candidates who were placed on the panel were suitably qualified for the posts of Veterinary Inspectors.
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 different civil status (in this Act referred to as “ the civil status ground ”),
( 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.
Discussion
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 discrimination the fact that his comparator who achieved a higher place on the panel was appointed ahead of the Complainant and in the Complainant's opinion was not suitably qualified.
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.