Complainant

Respondent

Parties

Joe  Gleeson

Public Appointments Service

Representatives

William Maher B.L. instructed by theOffice of the Chief State Solicitor

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-00025108-001

18/01/2019

The complainant is a civil servant with twenty years’ service.

In September 2018 he applied for a promotional position.

There are a number of stages in the process.

The first involves psychometric testing and the complainant was successful at this stage.

The second involves an evaluation of the complainant’s application form and his application was rejected at this stage (October 2018). He was not interviewed, and the respondent proceeded to shortlist candidates for the third stage; an interview.

As the complainant had made it beyond this stage on previous occasions and believed he would successfully navigate the interview stage he saw this as discrimination on the grounds of age and the purpose of the shortlisting as being to eliminate older candidates.

He says that his performance in these previous competitions should have rendered him eligible for the interview stage in this one.

He says that the application form was discriminatory in that it did not allow a more experienced applicant to fully set out their experience (due to word limit restrictions on the on-line application form).

Therefore, the purpose of the shortlisting was to eliminate older applicants and is discriminatory.

The respondent says that the true reason that he complainant was not selected for interview was that he did not have sufficient management and leadership experience for the position.

His complaint has been the subject of two internal reviews before it was referred to the WRC.

The first was an appeal under section 8 of the Code of Practice for the Appointment to Positions in the Civil Service. (CoP). This allows for an appeal where a candidate alleges that the process was unfair and in breach of the CoP.

This considered some seven allegations made by the complainant. A detailed written report and findings issued on December 12^th, 2018 and none of the grounds of appeal were upheld.

The complainant also submitted a request for information pursuant to section 76 of the Employment Equality Act, 1998, as amended, and this, too rejected the complainant’s contention that he had been discriminated against.

As to the selection process itself, it is based on candidates meeting competencies that were established as requirements for the position as a result of a comprehensive analysis. It is submitted that these change from time to time, and this has happened in recent years.

The three competencies at the first stage were; Management experience, Managing projects/operations and Judgement, Analysis and Decision Making.

Supervision of the process is by a retired Department Secretary-General.

The date of the applicant’s birth is not disclosed to members of the Shortlisting Board at any time, and candidates are advised that they are not obliged to provide any details related to age, gender, citizenship etc.

Even where they do this is not made known to the Shortlisting Board; the shortlisting process involves measuring the candidates’ applications against the criteria above.

Further, there is no basis for the contention that the shortlisting process is purposely designed to discriminate against older candidates.

There were 4,366 applications of whom 765 proceeded to the second stage, and of those who identified their age they ranged from 20 to 60.  Details were provided in five year age ranges of those who were successful. It does not display any bias in favour of younger applicants.

There are no facts or any credible basis on which the complainant can assert a presumption of discrimination on the basis of age. He has not therefore made out a prima facie case.

The complainant in this case relied on a number of pillars.

The first was that he had been restricted in making his case because of word count restrictions on the application form.

On the basis of the evidence adduced at the hearing it turned out that this was not true or was only true in respect of one of the headings. There had been ample opportunity on the application form to express himself at such length as he wished.

The second was that the ‘purpose’ of the system was to eliminate older candidates.

It turns out that the Shortlisting Board did not know the age of the candidates.

Third, the possibility of unintentional discrimination may nonetheless unintentionally arise.

In this regard the respondent provided details of the outcome of the shortlisting process. This indicated that older candidates performed better than, or as well as younger candidates.

Forty-two percent of candidates did not give their age.

Of those who did the position was as follows; (age range followed by percentage shortlisted);

20-24; 25%, 25-29; 24%. 30-34; 37%, 40-44; 57%, 45-49; 58%, 50-54; 43%, 60 plus (only four in this category) 80%. Of those who gave no age the success rate was 42%.

There is no discernible pattern of discrimination based on age in these figures, especially looking at those aged in their forties, and then those in their fifties in ten-year cohorts.

When asked if he had any comment on these figures the complainant said that he had not, unsurprisingly.

The respondent, in its legal submissions referred to the case of Grange v Public Appointments Service EE/2012/567 (29 February 2016) where the Adjudicator followed the earlier decision in Valpeters v Melbury Developments EDA 0917 where it was held;

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which the inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

The rehearsal of the pillars of the complainant’s case set out in these conclusions will not require any great analysis to see that, at their very best they are ‘mere speculation and assertion’.

They represent a quite extraordinary lack of insight on the part of the complainant as to what happened.

While he was critical of the Review published in May 2018 as not being ‘an appellate body’ that report contained all of the information in relation to success rates by age outlined above, as well as information about the changes in the selection process and the fact that the Shortlisting Board was not aware of the applicants’ ages.

How, in the face of this overwhelming evidence, which he had in his possession since May 2018, the complainant continued to harbour hopes that he would fare any better at the WRC remains a mystery.

In respect of the only issue which did not feature in that review, the restricted word count on the application form, he had also made an assertion without much apparent concern for whether it was true or not, or without bothering to check whether it was.

It is rare that an Adjudicator will make a finding that a complaint is vexatious, but this complaint is an exception and falls squarely within that category.

In any event, it is quite devoid of any merit as the complainant has failed to establish a prima facie case and it is dismissed.

For the reasons set out above I do not uphold Complaint CA-00025108-001 and it is dismissed

Equality, Age Discrimination, Vexatious