Complainant

Respondent

Parties

Sunil Monga

Health Services Executive

Complainant

Respondent

Anonymised Parties

Sunil Monga

Health Services Executive

Representatives

Ms. Eleanor Power B.L., instructed by Sean Ormonde & Co. Solicitors

Eversheds Sutherland

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-00021404-001

28/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00021404-002

28/08/2018

The Complainant is a senior physiotherapist and has being employed in various roles within the Respondent since 15 January 2003. He has submitted two complaints pursuant to section 77 of the Employment Equality Act namely that he was discriminated against by the Respondent by failure to promote him by reason of Age and Race.

The Respondent said that a temporary acting up position was filled by way of senior most suitable, the most suitable candidate got the position and there was no discrimination.

The Complainant is a senior physiotherapist and is employed in various roles within the Respondent since 15 January 2003. He has said that he continually upskilled and completed continual professional development while working with the Respondent.

In or around May 2018, a Manager level 1 position became available on a temporary basis and all senior physiotherapists were invited to put forward their names as an expression of interest for the role. Four senior physiotherapists expressed an interest including the Complainant. He said that the then job holder, his manager, Ms. A, checked with HR and was advised that as there were four applicants it would not be possible to hold interviews due to the short time frame and the anticipated temporary nature of the role.

The Complainant said that he informed Ms. A of his interest in the position, he was informed that the successful candidate would be required to spend two days involved in clinical work and three days involved in managerial work. He was informed where the geographical location and base of the post would be and although it was some distance from where he was located, he was interested and was told that his geographical base was not a barrier.

He said that in and around 19 June 2018 he received an email from his manager that Mr. B was the successful candidate and would be starting in a number of weeks. The Complainant said that Ms. A said that the successful candidate had “strong operational and organisational skills” and that “his geographical location would not be too disruptive to overall service delivery”. The Complainant said that there was no other basis for Ms. A’s decision, or explanation of the process/procedure applied in choosing the successful candidate over the other three applicants. The Complainant said Mr. B was the only Irish applicant and was much younger than the other candidates and he had considerably less experience in a senior position than the Complainant or the other candidates. The Complainant said that he had 12 years’ experience compared to Mr. B’s three years’ experience.

The Complainant said that he voiced his disappointment to Ms. A about the process including a lack of interview and should the role become permanent the incumbent acting manager would have a distinct advantage over other candidates for a permanent position. He asked for feedback from Ms. A. He said that he wanted to know the basis of Ms. A’s decision in the absence of interviews or an objective assessment of the four candidates’ skills. He held a meeting with Ms. A to discuss these issues. He said that she informed him that due to the short time frame, which did not allow time for interviews, it was decided to fill the post on a “senior most suitable basis”. She said that she did not expect the level of interest in the Manager’s post. The Complainant said that she said she would have preferred to have had an interview process. In the absence of that Ms. A said that Mr. B was always very good and organised, he always speaks up at meetings and he was “young and energetic”.

The Complainant said that he emailed the Respondent’s HR requesting the selection process policy and/or procedures for temporary assignments and asked for a clarification on a number of matters which led to the decision of the successful candidate. He raised, inter alia, that Ms. A mentioned the successful candidate’s age and energy, and whether the process was run in compliance with the Respondent’s own guidelines for emergency short term appointments. He said that HR’s response was less than adequate, and redirected him back to Ms. A as HR were not directly involved in the selection process.

The Complainant said that as of 3 September the Manager’s post was to be extended and as per the guidelines the post was referred to Regional HR to be advertised and all eligible staff were invited to apply. The Complainant’s solicitor made a data access request in respect of the Complainant. The Complainant points to an exchange in communication between HR and Ms. A, where HR informed her that she should have documented the selection criteria and that the lack of same, because there was no interviews, was not sufficient. The Complainant said that it would appear that HR’s advice was ignored. Ms. A selected the candidate and only she can explain the reason for selecting the youngest candidate, who happens to be Irish, with the least experience from four older non-Irish candidates.

Legal submissions

The Complainant said that he was discriminated by the Respondent in that there was no clear policy and/or procedure followed in the selection of the successful candidate. He received little to no feedback as to why he was unsuccessful in being promoted despite having substantially more experience in the senior role and no other selection criteria was set and no interviews where held. The Complainant said the successful candidate was described by Ms. A as “young and outgoing”. The Complainant said that the successful candidate was the only Irish person of the four who applied for the job.

The Complainant referred to the following authorities in support of him claim, Bosz v. Damoli Construction Solution Ltd [2011] ELR 34, Dublin Corporation v. Gibney’s [EE5/1986] in relation to establishing a prima facie case, Minagucbi v Wineport Lakeshore Restaurant [EDA034] on the shifting the burden of proof.

The following is a summary of the Respondent’s evidence.

The Respondent said that Ms. A held the position of physiotherapy manager and she was asked to step up to take on a lead role elsewhere within the Respondent’s organisation on a temporary basis. The Respondent said that her post was to be filled also in a temporary capacity and the appointment was to be filled on a “senior most suitable basis” in line with the HSE guidelines to fill temporary appointments of under 12 weeks. The Respondent said that it followed its policy for temporary appointments and applied it consistently to all candidates. The Respondent said that senior most suitable means employees who are at the senior grade and the most suitable to that role, and it does not mean a reference to the number of years’ experience a person has.

The Respondent said that the final decision to fill the temporary position was solely at the discretion of Ms. A. All staff in the senior grade in the service were notified of the temporary role becoming available, five put their names forward for consideration. No interviews were held due to time constraints. The Respondent’s evidence was that Ms. A knew the requirements for the role and considered the candidates under a list of criteria required for the role. She had known all the senior physiotherapists and worked with them for nearly ten years and had intimate knowledge of their particular skillsets and competencies from that time. The Respondent said of the five who had put themselves forward, one was American, two Irish and two Indian (one of which was the Complainant). Ms. A said it was the first time that she used the “senior most suitable” criteria for the selection of a candidate for a post. She said she was not aware of the candidates’ dates of birth and consequently their ages. Ms. A said that she had no recollection of ever making a comment about Mr. B being “young” at the meeting with the Complainant. She said that the age profile of the candidates did not play any part of her assessment.

Ms. A said that her first-choice candidate Ms. C was identified as the senior most suitable but as she was on maternity leave at the time, she would not be in a position to take up the temporary position. She had held the temporary position previously. Therefore, Ms. A considered the next person, who happened to be Irish and with the least seniority, however, it was her view that he was the most suitable candidate for the post. He demonstrated very strong organisational skills in how he ran his service. Ms. A said she sought feedback from other senior managers outside of the unit that have regular interaction with it, and Mr. B’s name was consistently mentioned over everyone else.

Ms. A said that the Complainant had not demonstrated the skills and qualities that the successful candidate that was required for the role. The Complainant had not put himself forward for initiatives that Mr. B had. The Respondent said that it was not an interview process and therefore she did not apply a formal scoring scheme. The Respondent said that an interview is not necessary as per the HSE guidelines to fill temporary appointments of under twelve weeks. Ms. A relied on her intimate knowledge of the skills and competencies of the requirements of the role.

The Respondent said that the Complainant sought feedback from Ms. A after the process to understand how he was not selected for the post. Ms. A offered a meeting with him to facilitate this and it was held on 25 June 2018. Ms. A said that the Complainant sought to use the meeting as an opportunity to demonstrate why he should be given the post whereas it was organised to give feedback on the process. She said that the position was filled by a senior most suitable basis and that interviews were not an option at that time due to time constraints. Ms. A advised the Complainant that should the position still be required to be filled beyond the temporary 12-week period the position would go to formal interview. The Complainant was advised that he could raise a grievance if he was unhappy with the response and he never took up that opportunity.

The Respondent said that it received correspondence from the Complainant in HR with a number of queries on the process and Ms. A’s decision to appoint the successful candidate. It indicated that it would liaise with Ms. A and revert to him. In the meantime, the temporary position at issue was now expected to extend further than the 12-week period and interviews were arranged to fill the post. The Complainant interviewed for the post but was not successful and was not panelled. The Respondent said that he never challenged that outcome.

The Respondent said that the Complainant has raised a number of claims as to why he considers that he was more suitable for the role, ahead of the successful candidate Mr. B. The Respondent said that it was Ms. A who had to make the decision and she made the decision on the basis of her knowledge of all the candidates and not on the basis of discrimination on the age or race grounds. The Respondent said that there was a number of years’ service in the senior role between the Complainant and Mr. B as of clinical experience. However, the Complainant was simply not the stronger candidate for the manager role, he did not have all the relevant skills for the Management post.

The Respondent said that the role was filled on a senior most suitable basis. The reference to senior does not mean a reference to length of service but simply to the senior grade. The successful candidate was at the senior grade and he had 13 years’ service, and therefore he qualified for consideration. The Respondent said that one of the other candidates had more years’ service than both the Complainant and the successful candidate but did not demonstrate the necessary skills for the position.

The Respondent said the burden to establish a prima facie case rests with the Complainant. It said that no facts have been established by the Complainant that the principle of equal treatment was not applied to him. The Respondent cites the decision in Southern Healthboard v Mitchell DEE011 (2001) ELR 201 as the appropriate test also citing Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64. The Respondent also cites the decision in Margetts v Graham Anthony & Company Limited EDA038 where the Labour Court referred to the mere fact that the Complainant falls within one of the grounds it is not sufficient in itself to establish a claim of discrimination. It also mentioned the case of Mijegu v Headway Ireland DEC E2006-011 where it was confirmed that cases where no prima facie case was established must fail.

The Respondent said based on the legal burden put forward by the Complainant it points to the inconsistency of the Complainant’s evidence in relation to the alleged statement that Ms. A said. Three different versions were mentioned throughout his submission which brings into question his recall of the said conversation. It said that Ms. A is consistent that she does not recall any conversation when any variation was used.

The Respondent cited the Labour Court decision in DPP v Sheehan EDA0416 which notes the test of where the Labour Court should generally not look behind a decision of interview and the like where there is “evidence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidate”. This test was relied on in similar case such as in O’Higgins v University College Dublin (2013) 24 ELR 146, HSE v Jerry Selvaseelan ADE/18/18 and Client Logic trading as UCA-L v Kulwant Gill EDA0817/2008.

The Respondent said the Complainant’s age and race were not taken into consideration, simply the most suitable candidate for the post was selected on merit.

I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a landmark determination the Labour Court found in Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts 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 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.”

I note section 8 of the Acts provides for the following,

“8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

…

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.”

Having regard to the broad range of activities referenced in Section 8 of the Acts, I am satisfied that the opportunity to take up an acting up temporary position for a period of 12 weeks without additional pay falls into the category provided for. I have heard that many people applied for the Manager 1 position and that it may have possible positive significance for later permanent promotion opportunities.

The Complainant is of Indian nationality and was 44 years old at the time of the incident that led to the complaint. He is alleging that he was discriminated against on grounds of age and race in relation to access to promotion to the position of Acting manager with the Respondent. The Complainant states that the successful candidate is Irish and 31/32 years of age. The Complainant said the Irish candidate was the youngest of all, all the other candidates were non-Irish and their ages ranged from 44 years old up to 60 years old.

I note that no interviews were held for the temporary assignment. The Respondent advised me that in such cases the decision rests with the Manager on the basis of “senior most suitable”. The Respondent said that the most suitable candidate was picked accordingly. The Complainant was not happy with the decision and sought feedback to which he said that he was told that Mr. B had the better organisational skills and he was young and energetic/outgoing/full of energy. Ms. A said that she had no recollection of saying something like that. The Complainant said that he asked for the assessment criteria for the candidates and nothing was forthcoming.

As stated above the burden of proof rest with the Complainant where he needs to establish facts from which discrimination may be inferred. This must be of sufficient significance to raise a presumption of discrimination based on credible evidence. I note in particular where it states that, “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The Complainant has made two claims of discrimination, one on the age ground and another on the grounds of race. From assessing the evidence adduced I note that the Complainant has presented evidence which he claims suggests that the Respondent’s decision to give the temporary post to the younger and more energetic candidate over the other older candidates. The Complainant said he he had a discussion with one of the other applicants, and they felt maybe they were “over the hill”. When he sought information on the criteria used to select the successful candidate, the Respondent did not produce anything that he was satisfied with. The Respondent challenged the Complainant’s recall of the meeting with Ms. A on 25 June 2018. It claims that three different character variations were noted in his submission, namely, – “young and energetic”, “young and outgoing” and “young and full of energy”. I found the Complainant to be a very credible witness and notwithstanding the slight variation in the actual recall of wording, the sentiment remains the same throughout consistently. Whereas, I note Ms. A’s evidence, also to be very credible, is less than sure that she said anything to that nature. Finally, I note that the Complainant’s evidence where he said that the successful candidate was much younger [12 years approx. plus] and had much less seniority than all other candidates.

Having examined all the submissions and testimony taken on the day of the hearing, I find that on the basis of the evidence that the Complainant has established facts of sufficient significance to raise a presumption of discrimination on the age ground. I have not been presented with any evidence to support the Complainant’s case with regard to race. Accordingly, I find that the Complainant has failed to establish a prima facie case on the race ground.

Once the Complainant has established a prima facie case the burden of proof transfers to the Respondent to rebut the inference raised.

The Respondent states that notwithstanding the lack of an interview, Ms. A was well aware of the qualities of the different candidates and was best placed to make the decision on the basis of the requirements for the post as it was her position and she knew the competencies for the post.

The Respondent was not in a position to produce any documentary evidence to demonstrate what actual assessment took place. The Respondent claims that Ms. A carried out a “senior most suitable” assessment on the candidates. Namely, that of the eligible candidates that were put forward Ms. A was able to identify the most suitable candidate for the post. The Respondent provided its policy in relation to short term replacement where it states that positions are to be filled on a “most senior suitable” appointment. This is a different assessment to the one carried out in this case namely, “senior most suitable”.

The evidence from the Respondent is that Ms. A’s assessment is based on a test of “senior most suitable” – looking to see who meets the seniority requirement and selecting the “most suitable” from those candidates. Whereas, the assessment criteria is worded differently in the HSE policy, “most senior suitable”. It may appear as semantics but it is clear that the two different assessments could yield different results. It could be read as the senior candidate if suitable should be offered the job. I have noted there are similar variations of these types of criteria are used across the public service in such instances. I would suggest that the official HSE guidelines would limit the assessment to firstly, the most senior candidate as to their suitability, and should the most senior candidate not be suitable, the next most senior candidate is assessed for the post and so on. However, that was not the assessment applied.

Ms. A, rightly or wrongly, applied a criteria assessment based on the suitability on the candidates before her and deemed that the most suitable candidate was Mr. B. I have no doubt that Ms. A selected the most appropriate candidate, in her view, who was best suited to fill her post. However, no rational explanation has been given regarding the criteria used to determine that selection. She has never produced the criteria necessary for the position, and where the Complainant failed to meet that criteria over Mr. B. This was asked for repeatedly by the Complainant prior to the hearing, I am satisfied it does not exist. The Respondent’s submission, on the day of the hearing, includes a list of competencies for the Manager 1 role. These were put forward as the criteria that the candidates were measured against. However, I cannot accept that they were the criteria that Ms. A actually measured the candidates against. There is no record of this measurement prior to the hearing.

I have noted above that the burden of proof has shifted to the Respondent to rebut the inference of discrimination. Therefore, it is for the Respondent to prove that the assessment of the candidates was not done in isolation; that Ms. A has made an assessment that the best candidate was selected, and that age was not a factor or was such an insignificant factor in the decision-making process.

I am cognisant of the decision in Fagan v Revenue Commissioners DEC-E-2008-004 where the Equality Officer found in favour of the Complainant mainly due to the lack of cogent evidence from the Respondent and the nonexistence of documentary evidence to substantiate its case that discrimination did not play into its decision making.

I have found the Complainant’s evidence and his recall to be credible, where Ms. A had mentioned the positives of Mr. B in the role included his organisation skills and his youth and energy. On the balance of probabilities, I find that the Respondent has failed to rebut that inference of discrimination raised.

Based on all of the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was the subject of discriminatory treatment on grounds of age.

I have taken specific note of the submission put forward by the Complainant that this complaint is more of a matter of raising awareness and transparency than one of seeking financial compensation. Therefore, I deem that the appropriate reward in the circumstances is that the Respondent shall pay the Complainant €6,000 [six thousand euro] in compensation.

Following on from above, I would deem it appropriate to mention, for the sake of transparency, that the Respondent should revisit its policy and ensure that all managers apply it correctly.

Employment Equality Acts – short term appointments – age race - compensation

Complainant

Respondent

Parties

Sunil Monga

Health Services Executive

Complainant

Respondent

Anonymised Parties

Sunil Monga

Health Services Executive

Representatives

Ms. Eleanor Power B.L., instructed by Sean Ormonde & Co. Solicitors

Eversheds Sutherland

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-00021404-001

28/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00021404-002

28/08/2018

The Complainant is a senior physiotherapist and has being employed in various roles within the Respondent since 15 January 2003. He has submitted two complaints pursuant to section 77 of the Employment Equality Act namely that he was discriminated against by the Respondent by failure to promote him by reason of Age and Race.

The Respondent said that a temporary acting up position was filled by way of senior most suitable, the most suitable candidate got the position and there was no discrimination.

The Complainant is a senior physiotherapist and is employed in various roles within the Respondent since 15 January 2003. He has said that he continually upskilled and completed continual professional development while working with the Respondent.

In or around May 2018, a Manager level 1 position became available on a temporary basis and all senior physiotherapists were invited to put forward their names as an expression of interest for the role. Four senior physiotherapists expressed an interest including the Complainant. He said that the then job holder, his manager, Ms. A, checked with HR and was advised that as there were four applicants it would not be possible to hold interviews due to the short time frame and the anticipated temporary nature of the role.

The Complainant said that he informed Ms. A of his interest in the position, he was informed that the successful candidate would be required to spend two days involved in clinical work and three days involved in managerial work. He was informed where the geographical location and base of the post would be and although it was some distance from where he was located, he was interested and was told that his geographical base was not a barrier.

He said that in and around 19 June 2018 he received an email from his manager that Mr. B was the successful candidate and would be starting in a number of weeks. The Complainant said that Ms. A said that the successful candidate had “strong operational and organisational skills” and that “his geographical location would not be too disruptive to overall service delivery”. The Complainant said that there was no other basis for Ms. A’s decision, or explanation of the process/procedure applied in choosing the successful candidate over the other three applicants. The Complainant said Mr. B was the only Irish applicant and was much younger than the other candidates and he had considerably less experience in a senior position than the Complainant or the other candidates. The Complainant said that he had 12 years’ experience compared to Mr. B’s three years’ experience.

The Complainant said that he voiced his disappointment to Ms. A about the process including a lack of interview and should the role become permanent the incumbent acting manager would have a distinct advantage over other candidates for a permanent position. He asked for feedback from Ms. A. He said that he wanted to know the basis of Ms. A’s decision in the absence of interviews or an objective assessment of the four candidates’ skills. He held a meeting with Ms. A to discuss these issues. He said that she informed him that due to the short time frame, which did not allow time for interviews, it was decided to fill the post on a “senior most suitable basis”. She said that she did not expect the level of interest in the Manager’s post. The Complainant said that she said she would have preferred to have had an interview process. In the absence of that Ms. A said that Mr. B was always very good and organised, he always speaks up at meetings and he was “young and energetic”.

The Complainant said that he emailed the Respondent’s HR requesting the selection process policy and/or procedures for temporary assignments and asked for a clarification on a number of matters which led to the decision of the successful candidate. He raised, inter alia, that Ms. A mentioned the successful candidate’s age and energy, and whether the process was run in compliance with the Respondent’s own guidelines for emergency short term appointments. He said that HR’s response was less than adequate, and redirected him back to Ms. A as HR were not directly involved in the selection process.

The Complainant said that as of 3 September the Manager’s post was to be extended and as per the guidelines the post was referred to Regional HR to be advertised and all eligible staff were invited to apply. The Complainant’s solicitor made a data access request in respect of the Complainant. The Complainant points to an exchange in communication between HR and Ms. A, where HR informed her that she should have documented the selection criteria and that the lack of same, because there was no interviews, was not sufficient. The Complainant said that it would appear that HR’s advice was ignored. Ms. A selected the candidate and only she can explain the reason for selecting the youngest candidate, who happens to be Irish, with the least experience from four older non-Irish candidates.

Legal submissions

The Complainant said that he was discriminated by the Respondent in that there was no clear policy and/or procedure followed in the selection of the successful candidate. He received little to no feedback as to why he was unsuccessful in being promoted despite having substantially more experience in the senior role and no other selection criteria was set and no interviews where held. The Complainant said the successful candidate was described by Ms. A as “young and outgoing”. The Complainant said that the successful candidate was the only Irish person of the four who applied for the job.

The Complainant referred to the following authorities in support of him claim, Bosz v. Damoli Construction Solution Ltd [2011] ELR 34, Dublin Corporation v. Gibney’s [EE5/1986] in relation to establishing a prima facie case, Minagucbi v Wineport Lakeshore Restaurant [EDA034] on the shifting the burden of proof.

The following is a summary of the Respondent’s evidence.

The Respondent said that Ms. A held the position of physiotherapy manager and she was asked to step up to take on a lead role elsewhere within the Respondent’s organisation on a temporary basis. The Respondent said that her post was to be filled also in a temporary capacity and the appointment was to be filled on a “senior most suitable basis” in line with the HSE guidelines to fill temporary appointments of under 12 weeks. The Respondent said that it followed its policy for temporary appointments and applied it consistently to all candidates. The Respondent said that senior most suitable means employees who are at the senior grade and the most suitable to that role, and it does not mean a reference to the number of years’ experience a person has.

The Respondent said that the final decision to fill the temporary position was solely at the discretion of Ms. A. All staff in the senior grade in the service were notified of the temporary role becoming available, five put their names forward for consideration. No interviews were held due to time constraints. The Respondent’s evidence was that Ms. A knew the requirements for the role and considered the candidates under a list of criteria required for the role. She had known all the senior physiotherapists and worked with them for nearly ten years and had intimate knowledge of their particular skillsets and competencies from that time. The Respondent said of the five who had put themselves forward, one was American, two Irish and two Indian (one of which was the Complainant). Ms. A said it was the first time that she used the “senior most suitable” criteria for the selection of a candidate for a post. She said she was not aware of the candidates’ dates of birth and consequently their ages. Ms. A said that she had no recollection of ever making a comment about Mr. B being “young” at the meeting with the Complainant. She said that the age profile of the candidates did not play any part of her assessment.

Ms. A said that her first-choice candidate Ms. C was identified as the senior most suitable but as she was on maternity leave at the time, she would not be in a position to take up the temporary position. She had held the temporary position previously. Therefore, Ms. A considered the next person, who happened to be Irish and with the least seniority, however, it was her view that he was the most suitable candidate for the post. He demonstrated very strong organisational skills in how he ran his service. Ms. A said she sought feedback from other senior managers outside of the unit that have regular interaction with it, and Mr. B’s name was consistently mentioned over everyone else.

Ms. A said that the Complainant had not demonstrated the skills and qualities that the successful candidate that was required for the role. The Complainant had not put himself forward for initiatives that Mr. B had. The Respondent said that it was not an interview process and therefore she did not apply a formal scoring scheme. The Respondent said that an interview is not necessary as per the HSE guidelines to fill temporary appointments of under twelve weeks. Ms. A relied on her intimate knowledge of the skills and competencies of the requirements of the role.

The Respondent said that the Complainant sought feedback from Ms. A after the process to understand how he was not selected for the post. Ms. A offered a meeting with him to facilitate this and it was held on 25 June 2018. Ms. A said that the Complainant sought to use the meeting as an opportunity to demonstrate why he should be given the post whereas it was organised to give feedback on the process. She said that the position was filled by a senior most suitable basis and that interviews were not an option at that time due to time constraints. Ms. A advised the Complainant that should the position still be required to be filled beyond the temporary 12-week period the position would go to formal interview. The Complainant was advised that he could raise a grievance if he was unhappy with the response and he never took up that opportunity.

The Respondent said that it received correspondence from the Complainant in HR with a number of queries on the process and Ms. A’s decision to appoint the successful candidate. It indicated that it would liaise with Ms. A and revert to him. In the meantime, the temporary position at issue was now expected to extend further than the 12-week period and interviews were arranged to fill the post. The Complainant interviewed for the post but was not successful and was not panelled. The Respondent said that he never challenged that outcome.

The Respondent said that the Complainant has raised a number of claims as to why he considers that he was more suitable for the role, ahead of the successful candidate Mr. B. The Respondent said that it was Ms. A who had to make the decision and she made the decision on the basis of her knowledge of all the candidates and not on the basis of discrimination on the age or race grounds. The Respondent said that there was a number of years’ service in the senior role between the Complainant and Mr. B as of clinical experience. However, the Complainant was simply not the stronger candidate for the manager role, he did not have all the relevant skills for the Management post.

The Respondent said that the role was filled on a senior most suitable basis. The reference to senior does not mean a reference to length of service but simply to the senior grade. The successful candidate was at the senior grade and he had 13 years’ service, and therefore he qualified for consideration. The Respondent said that one of the other candidates had more years’ service than both the Complainant and the successful candidate but did not demonstrate the necessary skills for the position.

The Respondent said the burden to establish a prima facie case rests with the Complainant. It said that no facts have been established by the Complainant that the principle of equal treatment was not applied to him. The Respondent cites the decision in Southern Healthboard v Mitchell DEE011 (2001) ELR 201 as the appropriate test also citing Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64. The Respondent also cites the decision in Margetts v Graham Anthony & Company Limited EDA038 where the Labour Court referred to the mere fact that the Complainant falls within one of the grounds it is not sufficient in itself to establish a claim of discrimination. It also mentioned the case of Mijegu v Headway Ireland DEC E2006-011 where it was confirmed that cases where no prima facie case was established must fail.

The Respondent said based on the legal burden put forward by the Complainant it points to the inconsistency of the Complainant’s evidence in relation to the alleged statement that Ms. A said. Three different versions were mentioned throughout his submission which brings into question his recall of the said conversation. It said that Ms. A is consistent that she does not recall any conversation when any variation was used.

The Respondent cited the Labour Court decision in DPP v Sheehan EDA0416 which notes the test of where the Labour Court should generally not look behind a decision of interview and the like where there is “evidence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidate”. This test was relied on in similar case such as in O’Higgins v University College Dublin (2013) 24 ELR 146, HSE v Jerry Selvaseelan ADE/18/18 and Client Logic trading as UCA-L v Kulwant Gill EDA0817/2008.

The Respondent said the Complainant’s age and race were not taken into consideration, simply the most suitable candidate for the post was selected on merit.

I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a landmark determination the Labour Court found in Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts 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 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.”

I note section 8 of the Acts provides for the following,

“8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

…

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.”

Having regard to the broad range of activities referenced in Section 8 of the Acts, I am satisfied that the opportunity to take up an acting up temporary position for a period of 12 weeks without additional pay falls into the category provided for. I have heard that many people applied for the Manager 1 position and that it may have possible positive significance for later permanent promotion opportunities.

The Complainant is of Indian nationality and was 44 years old at the time of the incident that led to the complaint. He is alleging that he was discriminated against on grounds of age and race in relation to access to promotion to the position of Acting manager with the Respondent. The Complainant states that the successful candidate is Irish and 31/32 years of age. The Complainant said the Irish candidate was the youngest of all, all the other candidates were non-Irish and their ages ranged from 44 years old up to 60 years old.

I note that no interviews were held for the temporary assignment. The Respondent advised me that in such cases the decision rests with the Manager on the basis of “senior most suitable”. The Respondent said that the most suitable candidate was picked accordingly. The Complainant was not happy with the decision and sought feedback to which he said that he was told that Mr. B had the better organisational skills and he was young and energetic/outgoing/full of energy. Ms. A said that she had no recollection of saying something like that. The Complainant said that he asked for the assessment criteria for the candidates and nothing was forthcoming.

As stated above the burden of proof rest with the Complainant where he needs to establish facts from which discrimination may be inferred. This must be of sufficient significance to raise a presumption of discrimination based on credible evidence. I note in particular where it states that, “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The Complainant has made two claims of discrimination, one on the age ground and another on the grounds of race. From assessing the evidence adduced I note that the Complainant has presented evidence which he claims suggests that the Respondent’s decision to give the temporary post to the younger and more energetic candidate over the other older candidates. The Complainant said he he had a discussion with one of the other applicants, and they felt maybe they were “over the hill”. When he sought information on the criteria used to select the successful candidate, the Respondent did not produce anything that he was satisfied with. The Respondent challenged the Complainant’s recall of the meeting with Ms. A on 25 June 2018. It claims that three different character variations were noted in his submission, namely, – “young and energetic”, “young and outgoing” and “young and full of energy”. I found the Complainant to be a very credible witness and notwithstanding the slight variation in the actual recall of wording, the sentiment remains the same throughout consistently. Whereas, I note Ms. A’s evidence, also to be very credible, is less than sure that she said anything to that nature. Finally, I note that the Complainant’s evidence where he said that the successful candidate was much younger [12 years approx. plus] and had much less seniority than all other candidates.

Having examined all the submissions and testimony taken on the day of the hearing, I find that on the basis of the evidence that the Complainant has established facts of sufficient significance to raise a presumption of discrimination on the age ground. I have not been presented with any evidence to support the Complainant’s case with regard to race. Accordingly, I find that the Complainant has failed to establish a prima facie case on the race ground.

Once the Complainant has established a prima facie case the burden of proof transfers to the Respondent to rebut the inference raised.

The Respondent states that notwithstanding the lack of an interview, Ms. A was well aware of the qualities of the different candidates and was best placed to make the decision on the basis of the requirements for the post as it was her position and she knew the competencies for the post.

The Respondent was not in a position to produce any documentary evidence to demonstrate what actual assessment took place. The Respondent claims that Ms. A carried out a “senior most suitable” assessment on the candidates. Namely, that of the eligible candidates that were put forward Ms. A was able to identify the most suitable candidate for the post. The Respondent provided its policy in relation to short term replacement where it states that positions are to be filled on a “most senior suitable” appointment. This is a different assessment to the one carried out in this case namely, “senior most suitable”.

The evidence from the Respondent is that Ms. A’s assessment is based on a test of “senior most suitable” – looking to see who meets the seniority requirement and selecting the “most suitable” from those candidates. Whereas, the assessment criteria is worded differently in the HSE policy, “most senior suitable”. It may appear as semantics but it is clear that the two different assessments could yield different results. It could be read as the senior candidate if suitable should be offered the job. I have noted there are similar variations of these types of criteria are used across the public service in such instances. I would suggest that the official HSE guidelines would limit the assessment to firstly, the most senior candidate as to their suitability, and should the most senior candidate not be suitable, the next most senior candidate is assessed for the post and so on. However, that was not the assessment applied.

Ms. A, rightly or wrongly, applied a criteria assessment based on the suitability on the candidates before her and deemed that the most suitable candidate was Mr. B. I have no doubt that Ms. A selected the most appropriate candidate, in her view, who was best suited to fill her post. However, no rational explanation has been given regarding the criteria used to determine that selection. She has never produced the criteria necessary for the position, and where the Complainant failed to meet that criteria over Mr. B. This was asked for repeatedly by the Complainant prior to the hearing, I am satisfied it does not exist. The Respondent’s submission, on the day of the hearing, includes a list of competencies for the Manager 1 role. These were put forward as the criteria that the candidates were measured against. However, I cannot accept that they were the criteria that Ms. A actually measured the candidates against. There is no record of this measurement prior to the hearing.

I have noted above that the burden of proof has shifted to the Respondent to rebut the inference of discrimination. Therefore, it is for the Respondent to prove that the assessment of the candidates was not done in isolation; that Ms. A has made an assessment that the best candidate was selected, and that age was not a factor or was such an insignificant factor in the decision-making process.

I am cognisant of the decision in Fagan v Revenue Commissioners DEC-E-2008-004 where the Equality Officer found in favour of the Complainant mainly due to the lack of cogent evidence from the Respondent and the nonexistence of documentary evidence to substantiate its case that discrimination did not play into its decision making.

I have found the Complainant’s evidence and his recall to be credible, where Ms. A had mentioned the positives of Mr. B in the role included his organisation skills and his youth and energy. On the balance of probabilities, I find that the Respondent has failed to rebut that inference of discrimination raised.

Based on all of the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was the subject of discriminatory treatment on grounds of age.

I have taken specific note of the submission put forward by the Complainant that this complaint is more of a matter of raising awareness and transparency than one of seeking financial compensation. Therefore, I deem that the appropriate reward in the circumstances is that the Respondent shall pay the Complainant €6,000 [six thousand euro] in compensation.

Following on from above, I would deem it appropriate to mention, for the sake of transparency, that the Respondent should revisit its policy and ensure that all managers apply it correctly.

Employment Equality Acts – short term appointments – age race - compensation