ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00017571
Parties:
| Complainant | Respondent |
Parties |
Representatives | Self. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00022662-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant lodged a claim of discrimination under the Employment Equality legislation. In the form he alleges that has been discriminated against on the grounds of age. The alleged discrimination arises out of an assessment of the Complainant’s Application for the position of Senior Transportation Officer with a local authority. |
Summary of Complainant’s Case:
The Complainant believes he was treated unlawfully from 27th April 2018 to 28th August 2018 by Public Appointments Service (PAS) in their assessment of his application for the position of Senior Transportation Officer, Dublin City Council. He believes that PAS discriminated against him due to his age when they refused to invite him for interview. On 31st August 2018, the Complainant notified PAS by ES1 Form of his age discrimination complaint under the Equal Status legislation. On 2nd October 2018 PAS replied, on ES2 form, denying discrimination but refusing to address his concerns. On 10th October 2018, the Complainant submitted a Workplace Relations Complaint Form outlining his complaint and confirming that he was willing to avail of mediation services. On 23rd October 2018, WRC acknowledged receipt of his complaint and advised that a copy had been forwarded to the Respondent. On 18th December 2018 WRC advised that both parties had indicated a willingness to attend mediation, so a meeting date was set. On 30th January 2019 the Complainant attended the WRC mediation meeting with PAS but the case could not be resolved so the Mediator decided to refer the matter to the Director General for adjudication by an adjudication officer. DETAILS (as provided by the Complainant in his own words). On 15th February 2018 I submitted an application to the Public Appointments Service (PAS) for the position of Senior Transportation Officer, Dublin City Council. On 30th April 2018 I received a message from PAS Recruitment Unit advising that I had not been selected for interview so I requested feedback and was advised that the shortlisting Board determined “The candidate’s application did not demonstrate the requisite breadth and depth of Relevant Experience and Strategic Management and Change relative to shortlisted candidates”. On 3rd May 2018 I wrote to PAS stating that “I believe as a Chartered Engineer for over 30 years’ experience including 10 years as Senior Executive Engineer in Transportation Section, Dublin City Council, that I have the requisite breadth and depth of experience and competency in assessment criteria for the position of Senior Transportation Officer, I also believe that my application form has demonstrated this sufficiently to justify an interview”. I also requested meaningful feedback including details of the marking scheme used to rank candidates. PAS replied and advised that I need to submit a request for a Formal Review to the Chief Executive (CEO). On 4th May 2018 I requested a Formal Review and subsequently on 24th May 2018 I received a report from the Formal Reviewer, advising that my appeal was rejected. On 25th May 2018 I replied explaining my dissatisfaction with the report and my opinion that the assessment process was flawed because the Board did not employ an open and transparent marking scheme. I expressed concern about age discrimination and asked if any candidate 55+ years was invited for interview. On 29th May 2018 a Formal Reviewer replied that “Public Appointments Service, as a general rule, do not use a marking scheme in shortlisting. The Board makes a relative assessment of a particular candidate’s suitability against a pool of candidates being shortlisted, using a framework of agreed shortlisting criteria”. The Formal Reviewer advised that the application form did not give a candidate’s date of birth but declined to answer my question on candidates 55+ years and referred it instead to Recruitment Unit (NB this question was refused an answer for 9 months until I asked it again recently, following WRC mediation meeting). On 7th June 2018 the Formal Reviewer advised that “The shortlisting board was briefed on the requirements to assess candidates based on the contents of their applications only and that no discrimination is allowed on any of the nine grounds in the Equality Legislation”. On 8th June 2018 I wrote to Chief Executive Officer, PAS, to express concern about age discrimination and to request a breakdown results for 55+ candidates in the recent Senior Transportation Officer competition and a similar breakdown for my two previous competitions, 2017 Senior Engineer and 2015 Senior Engineer. There followed an exchange of letters and emails over a two month period, with PAS Recruitment Manager, Freedom of Information (FOI) Decision Maker and FOI Appeals Officer (as detailed in below chronology). On 15th June 2018 I also wrote to the Commission for Public Service Appointments (CPSA) to request a Section 8 Formal Review because of PAS breach of Code of Practice and age discrimination but the CPSA rejected my appeal. On 6th July 2018 and 30th July 2018 FOI provided information for the 2017 and the 2015 Senior Engineer competitions and on 8th March 2019, PAS eventually provided a breakdown of results for the position of Senior Transportation Officer. The stats below show a very poor success rate for applicants 55+ years, especially in the 2017 Senior Engineer competition involving 508 applicants, including 47 applicants of 55+ years but only 1 was selected for interview
I do not believe that PAS take age discrimination seriously. The only measures disclosed by PAS to prevent age discrimination are to (a) withhold a candidate’s date of birth from the shortlisting Board, and (b) advise the Board to comply with Equality legislation. PAS do not recognise that a candidate’s age is revealed on the application form where applicants are instructed to give date of first employment since leaving school or college, which in my case is September 1974. PAS breakdown of results for the position of Senior Transportation Officer, revealed a total of 24 applications with the youngest applicant 34 years and the oldest 61 years. There was only one applicant of 55+ years and not two, as I had previously been led to believe by the Recruitment Manager on 11th June 2018. The shortlisting Board selected 6 candidates for interview. The age of the successful candidates ranged from 34 to 51 years, with an average age of 44 years. Therefore, I find the success of the younger outlier and the failure of the elder to be of note and worthy of investigation in any serious Formal Review. However, the possibility of age discrimination was not considered in the report of 24th May 2018, by Formal Reviewer, who confirmed this in letter of 29th May 2018 that “in relation to your comments with regard to age of candidates invited to interview. As part of the application process, candidates provide personal information on a short application form and also provide further information on a detailed application form. At the shortlisting stage, the Board did not have access to the personal information contained in the short application form. This information was also not considered by me as part of my review”. PAS are in denial on the possibility of age discrimination so have no effective measures to prevent it. I do not believe their shortlisting process of “qualitative evaluation” is fit for purpose when it comes to preventing age discrimination. The absence of a marking scheme increases the risk of conscious and unconscious bias influencing the decision making process. I believe the shortlisting Board were conscious of my age when they decided to eliminate me from the 2018 Senior Transportation Officer competition. I also believe age was a factor in my failure to progress in the 2017 Senior Engineer competition and especially 2015 Senior Engineer competition when I passed the psychometric tests but was rejected at shortlisting by a Board with the same Chairperson as in the 2018 competition. Therefore, I believe that PAS treated me unfairly, in breach of Code of Practice and contrary to Equal Status Acts 2000 – 2015. I am convinced the reason I was not selected for interview in Senior Transportation competition was because of my age. DETAILS CHRONOLOGY AND APPENDICES. On 15th February 2018 I applied to PAS for the position of Senior Transportation Dublin City Council. On 27th April 2018 Recruitment Unit notified me that I had not been selected for interview. On 30th April 2018 I requested feedback. On 2nd May 2018 Recruitment replied, “The candidate’s application did not demonstrate the requisite breadth and depth of Relevant Experience and Strategic Management and Change relative to shortlisted candidates” and advised that 24 candidates applied for the campaign and 6 have been called for interview. On 4th May 2018 I requested a formal review by CEO. On 24th May 2018 Formal Reviewer reported that “I am assured that the Members of the Shortlisting Board afforded great consideration to their deliberations in relation to the evidence demonstrated in your application” and “I do not find any evidence to disagree with the decision of the Board”. On 25th May 2018 I replied to Formal Reviewer and expressed my disappointment with the report and also my concern regarding age discrimination. I asked if any applicant 55+ years was invited for interview. On 29th May 2018 Formal Reviewer replied and advised that “The Board based their assessment solely on the evidence provided in the detailed application forms which did not include the dates of birth of the candidates” and that my request for information result on 55+ applicants had been forwarded to Recruitment Unit. On 30th August 2018 I replied and pointed out that the detailed application includes full particulars of all employment between the date of leaving school or college and the present date, and on page 9 of my application disclosed September 1974 as my first employment. Therefore, I reiterated my concern regarding age discrimination. On 7th June 2018 Formal Reviewer responded that “The shortlisting board was briefed on the requirements to assess candidates based on the information contained in their applications only and that no discrimination is allowed on any of the nine grounds in the Equality legislation”. On 8th June 2018 I wrote to the CEO and I expressed my concern regarding age discrimination and requested a breakdown of results for the 3 PAS competitions that I entered i.e. 2018 Senior Transportation Officer and 2017 and 2015 Senior Engineer. I also referred to my letter of 11th September 2017 to CEO seeking a Section 8 Formal Review of the decision to eliminate me from the 2017 Senior Engineer competition when I expressed concern about age discrimination and requested a breakdown of results for the 2015 Senior Engineer competition especially for 55+ applicants. In reply on 12th September 2017, the CEO’s office advised me to contact the Office of the Commission for Public Service Appointments (CPSA) which I did on the same date and received a reply from CPSA on 13th September 2017 advising that my appeal had been rejected but provided no breakdown of results for 2015 Senior Engineer competition. On 11th June 2018 I received a response from Recruitment Manager, in reference to my correspondence to Formal Reviewer and CEO, informing me that PAS cannot release if any candidate 55+ years was invited for interview “as to do so could provide personal information pertaining to the successful candidate” but could advise that of 24 applicants for Senior Transportation Officer only 2 gave their dates of birth which put them 55+ years and 1 applicant undeclared date of birth. In addition, I was advised that my request for a breakdown of results for 2017 and 2015 Senior Engineer competitions had been forwarded to PAS FOI Officer. On 15th June 2018 I wrote to CPSA requesting a Section 8 Formal Review my application for 2018 Senior Transportation Officer. I explained my concern regarding age discrimination and PAS failure to run a fair and transparent competition. I said that I had previously written to CPSA on 12th September 2017 with similar concerns regarding 2017 Senior Engineer competition. I complained that the PAS had relegated my recent concerns to a FOI request. I noted that the same Chairperson presided over the Shortlisting Board that rejected my application in 2015 Senior Engineer competition, (having passed the psychometric tests) as in the recent 2018 Senior Transportation Officer competition. On 21st June 2018 the CPSA refused my appeal for a Section 8 Review because it was not judged to be “most exceptional circumstances” On 6th July 2018 FOI Decision Maker reported “With regard to your request for the number of applicants over 50 who applied for the position of Senior Transportation Officer 2018 and the number of those who were then called to interview, I am refusing the release of this information as provided for under Section 37(1) of Freedom of Information Act, 2014”. But provided some results of the 2017 and 2015 Senior Engineer competitions as per Table below:
On 9th July 2018 I replied to FOI and pointed out that the Recruitment Manager had already advised me that 2 applicants for 2018 Senior Transportation competitions were 55+ years so I appealed for the release of the 2018 information. I also requested further details of the results of 2017 and 2015 competitions. On 30th July 2018 FOI Appeals Officer replied, but I did not receive the reply until 21st August 2019 due to email problems while I was on leave. The Officer advised “In relation to your request as to whether a candidate 55+ was invited to interview for Senior Transportation Officer, I am unable to release this information due to the small number of candidates invited for interview and therefore the probability that the disclosure of this information relating to a candidate who might be identified from this information would result in the release of personal information of an identifiable person”. However, the Officer provided additional information on the number of 55+ applicants called for interview in the 2017 and 2015 Senior Engineer competitions as shown below:
On 28th August 2018 FOI Decision Maker confirmed that the numbers in the above table are a correct reflection of PAS records for 2017 and 2015 competitions. On 31st August 2018 I notified PAS by ES1 form of my age discrimination complaint under Equal Status legislation. On 2nd October 2018 PAS replied on ES2 form denying discrimination but failed to provide anything new in their defence other than reporting incorrectly that the formal review, of 24th May 2018 advised that the PAS representative on the Shortlisting Board “confirmed that he briefed the Board in relation to the equality and discrimination as well as the CPSA Code of Practice. On 8th March 2019 PAS released a breakdown of results for 2018 Senior Transportation Officer competition. |
Summary of Respondent’s Case:
By a Complaint Form received 10th October 2018 the Complainant lodged a claim of discrimination under the Employment Equality legislation. In the form he alleges that he has been discriminated against on grounds of age. The alleged discrimination arises out of an assessment of the Complainant’s Application for the position of Senior Transportation Officer, Dublin City Council. A competition was held by the Respondent for the position of Senior Transportation Officer, Dublin City Council (Campaign ID 17240702). The closing date for the receipt of applications was Thursday 15th February 2018. The completed application form was received by the Respondent on 15th February 2018. 24 applications were received in total for the post of Senior Transportation Officer. The Shortlisting Board comprised of three members. The Chairperson was CF, Management Consultant. The Board Members were DB, former County Manager Dun Laoghaire Rathdown County Council and GM former CEO of the National Transport Authority. The representative from the Respondent was SD. Prior to a meeting on 23rd April 2018 to decide on the shortlisting criteria, a document was sent to each of the Shortlisting Board outlining that there had been 24 applications in total. It further outlined the purpose of the shortlisting session which was to identify those candidates who have the appropriate skills and experience which appear relevant to the role and who would be most suitable to call forward for interview. The document states: “In considering candidates as shortlisting, ideally we are looking for people who meet all of the criteria below: Relevant Experience · A record of satisfactory experience (at least 8 years) in one or all the following: traffic/roads engineering work, intelligent transport systems, traffic planning. Working with People · A proven record of ability to work with and lead a multi-disciplinary team. A demonstrated ability to motivate, empower, and encourage staff to achieve maximum performance and added value. · A demonstrated record of communication skills, including the ability to work in close cooperation with all stakeholders and the ability to seek cooperation and consensus from a wide range of bodies and representative groups. Strategic Management and Change · A track record of experience in the area of strategic management and change including strategic ability, political awareness, networking and representing and bringing about change”. The document goes on to suggest that in reviewing the application forms, the members might find it useful to quickly rate the strength (e.g. high medium and low) of each candidate in terms of their experience in areas such as those listed above to identify candidates who are, in their opinion, potentially “definitely in” or “definitely out”. The document goes on to state that those are simply suggested guidelines and that on the day of the Shortlisting Board, all applicants would be reviewed and that the Board would agree the final shortlisting criteria when they met on 23rd April 2018. In addition to the suggested shortlisting guidelines, a further document was included to all Board Members setting out what was described “some important issues”. The document made it clear that the Respondent is fully committed to ensuring that the best person for the job is successful in the campaign. It goes on to emphasise the importance of a number of issues which were relevant to the role as a member of the Shortlisting Board for the campaign. The issues that were set out in detail related to: 1. Confidentiality 2. Conflicts of Interest 3. The Commission for Public Service Appointments (CPSA) Code of Practice for Appointments to positions in the Civil and Public Service 4. Freedom of Information legislation and 5. Equality legislation In respect of Equality legislation, it states “The Public Appointments Service is committed to upholding the principles outlined in relevant legislation. The Employment Equality Acts 1998 and 2008 outlines discrimination on nine grounds and the nine grounds including age are set out”. The document goes on to state that discrimination is described in the Act as “the treatment of a person in a less favourable way than another person is, has been, or would be treated”. 6. Travel and Subsistence 7. Parking 8. Health & Safety 9. Fraud policy The Complainant was not called for interview and was not shortlisted for interview in the competition. As a result, he requested feedback regarding his candidature and by a letter dated 2nd May 2018 from AMB Public Appointments Service the feedback regarding his application was that the Board had agreed that relative to other candidates “the candidate’s application did not demonstrate the requisite breadth and depth of relevant experience and strategic management and change relative to shortlisted candidates”. All positions that fall under the remit of the Respondent and under the remit of the Public Service Management (Recruitment and Appointments) Act 2004 are conducted in line with a Code of Practice published by the Commission for Public Service Appointments. Each Code sets out the general procedures (including review procedures) to be adopted in respect of complaints brought forward by candidates. A candidate who is not satisfied with the selection and appointment process, or part of it, may seek a review under either Section 7 or at Section 8 of the Code of Practice. Where a selection process is reviewed under Section 7, a Complainant may not then seek a further review in respect of the same matter under Section 8, other than in exceptional circumstances, as may be determined by the Commission in its sole discretion. A request for review under Section 7 was received by the Complainant. In that request, the Complainant stated “I believe, as a Chartered Engineer with over 30 years’ experience including 10 years as Senior Engineer in the Transportation Section, Dublin City Council that I have requisite breadth and depth of experience and competency in assessment criteria for the position of Senior Transportation Officer. I also believe that my Application Form has demonstrated this sufficiently to justify an invitation to the next stage. Therefore, I wish to formally appeal the decision not to call me for interview”. It is noteworthy that there is no reference to age discrimination or a suggestion that the Complainant has been discriminated against on grounds of age at this stage. A review was carried out by SP, Formal Reviewer, Corporate Compliance and Quality Assurance Unit, in PAS. This unit is independent of the Recruitment and Selection process. By a letter dated 24th May 2018, she outlined the outcome of that review to the Complainant. The letter explains that SP has had no direct involvement in the appointment process and confirms that during the process of conducting her review, she familiarised herself with all of the information material to his request, including the Candidate’s Information Booklet and the selection criteria adopted by the Shortlisting Board. She stated that she had examined the Complainant’s Application and had also examined the Applications of a sample of other candidates. She held discussions with the Recruitment Unit and discussed his concerns with the Shortlisting Board. She familiarised herself with the campaign and the assessment process and reviewed the response to the Complainant’s request for feedback. Out of the 24 applicants that presented for shortlisting, six were shortlisted to be invited forward to the next stage of the competition. SP outlined that the Information Booklet set out information pertaining to the Job Specification and Person Specification and outlined the essential requirements. She noted that the booklet also included the key competencies for the role of Senior Transportation Officer. On foot of her review, she was assured that the Shortlisting Board carefully examined the Application Forms and evaluated the content against the agreed shortlisting criteria. The shortlisting criteria used by the Shortlisting Board for the competition were based on the essential requirements for the competition and she referred to a letter containing feedback dated 2nd May 2018 which outlined the shortlisting criteria to the Complainant. In the Complainant’s request for review he stated that he believed he had the requisite breadth and depth of experience and competency and she noted from her review of the Application Form that it informed candidates that “The information contained in the Application Form will play a central part of the shortlist process” and that “The decision to include you in the shortlist of candidates going forward to Stage 2 of the process may be determined based on the information you supply at this stage”. She stated that while she noted that the Complainant described the length of his experience, she advised that the Shortlisting Board cannot infer certain skills/competencies or overall suitability for the appointment based solely on the documented length of experience in any particular role. She stated “The length of experience taken in isolation cannot serve as the sole or primary determinant when evaluating how a candidate satisfies the shortlisting criteria. The way in which the evidence is presented in the Application Forms impacts on the decision of the Board, as candidates must present evidence of their experience and competence in each of the assessed areas to convince the Board of their suitability and match for the role. It is not enough for candidates to point to their track record and hope that this will convince the Board that they have the skillset required. In the assessment of Applications, the Shortlisting Board are only in a position to evaluate the evidence as it is demonstrated by the candidate in their Application Form”. SP goes on to state that the decision not to include the Complainant among those invited to the next stage of the competition was indicative of the level of evidence demonstrated by him in his Application compared to the level of evidence provided by those who were shortlisted. She also confirmed that at her request the Shortlisting Board had re-examined the Complainant’s application against the shortlisting criteria. The Board commented that the field of candidates was strong in the competitive process. On foot of her review, SP provided some feedback for the Complainant in relation to the evidence he had provided on his application form which the Board assessed against the shortlisting criteria. She stated that “The Board indicated that the evidence you provided in relation to the area of ‘working with people’ was good. However, they indicated that other candidates demonstrated stronger evidence across a broader range in relation to ‘relevant experience’. They were of the view that you did not demonstrate to the level required in the area of ‘strategic management and change’. In the context of this area, the evidence demonstrated by other candidates, who were included in the shortlist of candidates going forward in the competition was at a higher level in relation to ‘strategic ability’ and ‘political awareness’. You may have benefited from demonstrating stronger evidence of the behaviours undertaken by you to demonstrate your skills and competence in strategic ability, particularly, in the area of ‘innovation and creativity’ and demonstrating to a higher level your political awareness”. In upholding the decision taken at the shortlisting stage SP indicated that she was assured that the candidates that were shortlisted did present greater evidence to demonstrate how they satisfied the criteria in relation to their experience and skills to the level required to be included in the shortlist. She did not find any evidence to disagree with the decision of the Board. The Complainant responded by a letter dated 25th May 2018. In that letter he stated that he was seeking a fair analysis of the evidence provided in his submission. He stated that he appreciated SP’s effort to provide meaningful feedback but still disagreed with the decision not to invite him for interview. He stated that “I believe the assessment process was flawed as it appears that the Shortlisting Board did not employ an open and transparent marking scheme to rank candidates fairly. The result of the Board’s assessment of my Application based on words like good, stronger, broader and higher is vague, subjective and meaningless. I believe the PAS failed in their responsibility to ensure that the competition complied with their principles of probity, merit, best practice, fairness, openness, accountability and transparency. Finally, I would like to believe that age was not a factor in my failure to be invited to the next stage. Unfortunately, my recent experience with PAS has cast serious doubts in my mind. Therefore, to allay my fears, perhaps you might advise of any candidate 55+ years who was invited for interview”. SP responded to that letter by a letter dated 29th May 2018 in which inter alia she stated that as a general rule the Respondent do not use a marking scheme in shortlisting. The Board makes a relative assessment of a particular candidate’s suitability against the pool of candidates being shortlisted, using a framework of agreed shortlisting criteria. Candidates are ruled either in or out and feedback comments are provided to explain that decision. In relation to the comments regarding the age of candidates she stated “As part of the Application process, candidates provide personal information on a short Application Form and also provide further information on a detailed Application Form. At the shortlisting stage, the Board did not have access to the personal information contained in the short Application Form. This information was not considered by me as part of my review. The Board based their assessment solely on the evidence provided in the detailed Application Forms which did not include the dates of birth of candidates”. By a letter dated 30th May 2018 the Complainant responded stating that he disagreed with the PAS general rule being applied in a competition involving only 24 applicants. He believed that the Board should have employed an open and transparent marking scheme to rank candidates fairly. He also pointed out that the detailed Application Form provides ample information to reveal someone’s age as it includes full of all employment between the date of leaving school or college and the present date. Therefore, he stated that he was still concerned that age might have been a factor in the Board’s decision not to invite him for interview. SP responded by a letter dated 7th June 2018. In that letter she sets out that the shortlisting process is an established system of a qualitative evaluation that encompasses the entirety of the Application documentation submitted by candidates. The process draws on the pooled relevant professional experience, expertise and judgment of the Selection Board itself in making an informed assessment of the general suitability or otherwise of each individual candidate for the particular position, and in determining which of the Applicants best meet the requirements of the role as reflected in the shortlisting criteria. She stated that the Selection Board members received the forms in advance of the Board and assessed them against the shortlisting criteria. The Board then meet to discuss their individual assessments and reach agreement as to which candidates best meet the shortlisting criteria. She goes on to state that the system had been in operation for a substantial number of years and as with other aspects of the recruitment process, the shortlisting process has been the subject of challenge. However, no breaches of the CPSA Codes have been found in relation to how PAS conducts the shortlisting process. She confirmed that as she had now concluded her review under Section 7 she could not be of any more assistance. In further correspondence, dated 8th June 2018, the Complainant requested the number of Applicants over 55 years of age along with their progress through different stages of the competition for the Senior Engineer in a Local Government Campaign in 2017. He also requested a breakdown of competition results for the Senior Engineer campaigns, open and confined in 2015. DF, Recruitment Manager, PAS, advised that she was forwarding that request to the Freedom of Information Officer who would be in touch with regard to those requests. By email dated 11th June 2018, DF, Recruitment Manager, PAS states “In reference to your correspondence with SP regarding the campaign for a Senior Transportation Officer in Dublin County Council and subsequent correspondence you requested whether candidates 55+ years were invited for interview. The Public Appointments Service cannot release this information as to do so could provide personal information pertaining to the successful candidate”. However, she confirmed that “of the 24 applications received for the post, two of those candidates listed their age as being over 55 years. One candidate did not declare their age of birth. The remaining 21 listed their date of birth less than 55 years”. By a letter dated 6th July 2018 the Complainant received correspondence from the Freedom of Information decision-maker CO. The letter provided a breakdown of candidates who applied and who were deemed suitable for appointment. With regard to the request for the number of applicants who applied in the 2018 competition and those called for interview he refused the release of that information as provided for under Section 37(1) of the Freedom of Information Act 2014. Having considered the request he was satisfied that the granting of the request would involve the disclosure of personal information. The Complainant was entitled to have that decision reviewed and given four weeks to do so. The Complainant sought a review on the refusal to provide the requested information and to answer his question whether any Applicant 55+ years was invited for interview in the 2018 competition. A response to that review was given by a letter dated 30th July 2018 from CD. In that letter the Complainant was provided with the following information: Senior Engineer 2015 Preliminary Interviews – 21 candidates 55+ called to interview (5 age undeclared) Senior Engineer 2015 Final Interviews – 16 candidates 55+ called to interview (5 age undeclared) Senior Engineer 2017 Final Interviews – 1 candidate 55+ called to interview (4 age undeclared) SUBMISSIONS Section 6 of the Employment Equality Acts defines discrimination as follows: 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 sub-section 2 (in this Act referred to as the discriminatory grounds) which: 1) Exists .... and 2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) or f) That they are of different ages, but subject to sub-section 3 (in this Act referred to as the age ground)”. Section 85(a) of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. 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. The Labour Court in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the Claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment”. The Labour Court elaborated on the interpretation of Section 85(a) in Melbury v Valpeters EDA/0917 where it stated that Section 85(a) “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 85(a) 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”. In Madarassy v Nomura International PLC [2007] IRL R246 the Court of Appeal for England and Wales considered how a Court or Tribunal should approach the questions posed by the corresponding provision of UK legislation on the burden of proof. In a Judgment concurred with by Lawes and Morris KL JJ, Mummery LJ held that in employment discrimination cases the law requires that a Tribunal must first examine the evidence to determine whether the action complained of by the employee would in the absence of an adequate explanation by unlawful discrimination. If the Tribunal makes that finding, then the burden of proof shifts to the employer to disprove the allegation of unlawful discrimination. The Tribunal/Commission and the Labour Court have consistently held that it is not the responsibility of the Tribunal to decide who is the most meritorious candidate for a position rather it is for the Tribunal to determine whether the Complainant was discriminated against on any of the grounds outlined in the Acts. The Labour Court in EDA 0416 Director of Public Prosecutions v Robert Sheehan stated that the Complainant must establish “a factual matrix from which the Court may properly draw an inference that discrimination has occurred”. It also found there was “no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies”. However, in O’Halloran v Galway City Partnership EDA 077, the Labour Court found that, an inference of discrimination can arise where “a better qualified candidate is passed over in favour of a less qualified candidate” or where there is an unexplained procedural unfairness in the selection process. It is submitted that there is no evidence put forward by the Complainant to suggest that he was better qualified than those candidates who were interviewed. It is accepted that the Labour Court in Director of Public Prosecutions v Robert Sheehan found that “In order to shift the probative burden it is not necessary for the Complainant to adduce direct evidence of discrimination on either the gender or the age ground. As was pointed out by Neill LJ in King v Great Britain China Centre [1992] ICR 516 “such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found by the Court”. The rationale of this approach was explained in Citibank v Ntoko [2004] 15 ELR 116 where the Court stated “This approach is based on the empiricism that the person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the Complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging Complainant’s to prove something which is beyond their reach and which may only be in the Respondent’s capacity of proof”. In order to determine whether the Complainant has established a prima facie case a three-tier is generally employed: first the Complainant must establish that he is covered by the relevant discriminatory ground, secondly he must establish that the specific treatment alleged has actually occurred and thirdly it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground. With regard to the first test it is submitted that is accepted that the Complainant is in an age group 55+. With regard to the second test it is submitted that the Interview Board members were fully informed and prepared and well aware of their obligations regarding equality, transparency and fairness. It is submitted that the Complainant was treated the same was as any other candidate in that his Application Form was assessed vis a vis other Application Forms and his Application Form did not demonstrate the requisite breadth and depth of relevant experience and strategic management and change relative to other shortlisted candidates. It is submitted that information on the numbers of Applicants aged over 55 as well as statistics regarding performance at shortlisting stage by age group has been prepared by the Respondent. This demonstrates that of the six candidates shortlisted, two were from the 50-54 age group, two from the 45-49 age group, one from 40-44 and one from 30-34. It is submitted that there is clearly a good spread of ages of those shortlisted and no evidence of any discrimination on age grounds. Furthermore, it is submitted that candidates in the over 50 category were more likely to be shortlisted (two from five applications) than candidates between the ages of 35 to 49 (three from seventeen). In A Clerical Officer v A State Board ADJ00006574 the Adjudication Officer found in that case that the Complainant was not discriminated against in a promotion on grounds of his age. The Complainant alleged that he was discriminated on the basis of being younger than other candidates in the competition. The Adjudication Officer accepted that he was comparatively young and therefore that satisfied the first test as outlined above. In relation to the interview process the Adjudication Officer was satisfied that there were thorough preparations undertaken for the competition and training given to the Interview Board members and he found that the Board Members were well aware of their obligations regarding equality, transparency and fairness. Furthermore, the Adjudication Officer found that the Complainant in that case was not treated less favourably than an older colleague comparator. Although the Complainant relied on statistical evidence to support his Claim, the statistics showed that a significant number of the candidates who were selected to progress to the next round of the competition came from his age group. It is submitted that similarly in the instant case as is clear from the statistical evidence the proportion of people over 50 was higher than those in the lower age groups in terms of their success in going through to be interviewed. In examining the breakdown of the information included in Annex 6 it is clear that there is a good spread of ages of those who were shortlisted and there is no evidence of any discrimination on age grounds. Furthermore, it was clear from the review carried out on the Complainant’s Application that his application simply did not stand up to scrutiny vis a vis other application forms. CONCLUSION It is submitted that the Complainant was not discriminated against on grounds of age. |
Findings and Conclusions:
The Public Appointments Service (PAS) operates under the guidelines of the Commission for Public Service Appointments (CPSA). Under these guidelines PAS are committed to the principles of: · Probity · Appointments made on Merit · An appointments process in line with best practice · A fair appointments process applied with consistency · Appointments made in an open, accountable and transparent manner. I have gone through the submission and documents provided by the Respondent and would comment as follows: Code of Practice – Appointment to Positions in the Civil and Public Service. Clause 2.6.6 Assessment methodologies. Regarding assessment methodologies and mechanisms employed in the selection and appointment process, the Commission expects that · Assessment mechanisms facilitate the identification and selection of the person or persons who best match the requirements of the post. · Assessment methodologies are used in line with best practice and consist only of properly validated selection tools and techniques. · Assessment processes are appropriate to the selection criteria. · An appropriate means of shortlisting is employed (where shortlisting exercises are carried out). · Selection tests, where they are used as part of the selection process, are job related. · All reasonable efforts are made to accommodate candidates. · Enhanced facilities and equipment are provided as necessary to enable candidates to perform to the best of their abilities. Looking at the documentation prepared for the Interview Board in 2018 regarding the position of Senior Transportation Officer I am satisfied that all 24 candidates were looked at and the selection criteria utilised was done so fairly in all 24 cases. The guidelines provided to the members of the Shortlisting Board cannot be criticised. It was not mentioned at the hearing of the complaint what instructions / guidelines were issued to any Shortlisting Board formed in 2017 for the competition to appoint a Senior Engineer where 508 individuals applied for the position. Was the same level of detail gone into and were all 508 applications looked at by a Shortlisting Board? From my reading of the Code of Practice I accept that assessment and selection methodologies may change from one competition to another, what may be suitable for one competition may not be suitable for another competition. What cannot change is compliance with the Code of Practice as shown above. The Respondent’s legal representative has quoted the case of Melbury Developments v Valpeters EDA /0917: The Labour Court elaborated on the interpretation of Section 85(a) in Melbury v Valpeters EDA/0917 where it stated that Section 85(a) “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 85(a) 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”. The Complainant has quoted figures provided by the Respondent organisation, I accept these figures are accurate. The question that must be asked is do they raise a presumption of discrimination? The figures presented for 2015 and 2017 are not consistent with each other. Candidates in the 55+ category were more successful in 2015 that their peers in the 2017. By a letter dated 6th July 2018 the Complainant received correspondence from the Freedom of Information decision-maker CO. The letter provided a breakdown of candidates who applied and who were deemed suitable for appointment. With regard to the request for the number of applicants who applied in the 2018 competition and those called for interview he refused the release of that information as provided for under Section 37(1) of the Freedom of Information Act 2014. Having considered the request he was satisfied that the granting of the request would involve the disclosure of personal information. The Complainant was entitled to have that decision reviewed and given four weeks to do so. The Complainant sought a review on the refusal to provide the requested information and to answer his question whether any Applicant 55+ years was invited for interview in the 2018 competition. A response to that review was given by a letter dated 30th July 2018 from CD. In that letter the Complainant was provided with the following information: Senior Engineer 2015 Preliminary Interviews – 21 candidates 55+ called to interview (5 age undeclared) Senior Engineer 2015 Final Interviews – 16 candidates 55+ called to interview (5 age undeclared) Senior Engineer 2017 Final Interviews – 1 candidate 55+ called to interview (4 age undeclared) I am unable to find any factual evidence that provides a presumption of discrimination. I do not accept that the Complainant was the victim of age discrimination and I have no alternative but to decide that the complaint as presented is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above the complaint is not well founded and therefore fails. |
Dated: September 30th 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Age Discrimination. |