EDA2022

1.Appeal of Adjudication Officer Decision No:ADJ-00017571 CA-00022662-001

BACKGROUND:

2.The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on 8 November 2019. A Labour Court hearing took place on 15 September, 2020. The following is the Court's Determination:



DETERMINATION:

Background to the Appeal

This is an appeal by Mr Bernard Lester (‘the Complainant’) of a decision of an Adjudication Officer (ADJ-00017571, dated 30 September 2019) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer held that the complaint under the Act was not well-founded as the Complainant had not submitted any evidence from which a presumption of discrimination could be inferred. The Complainant’s Notice of Appeal was received on 8 November 2019. The Court heard the appeal in Dublin on 15 September 2020.

Submissions

The Complainant alleges he was treated less fairly on the age ground in a 2018 competition run by the Public Appointments Service (‘PAS’/ ‘the Respondent’) for the position of Senior Transportation Officer with Dublin City Council. The Complainant submitted his application to the Respondent on 15 February 2018. On 30 April 2018 he was advised that he had not been shortlisted and was not being offered an interview. In its written feedback regarding the Complainant’s application, the Respondent stated, “The candidate’s application did not demonstrate the requisite breadth and depth of Relevant Experience and Strategic Management & Change relative to shortlisted candidates.”

The Complainant made a request to the CEO of PAS for a formal review of his application on 4 May 2018. He was advised by letter received on 24 May 2018 that his appeal had been unsuccessful. The letter 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 …

  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’.”

• “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 15 June 2018, the Complainant wrote to the Commission for Public Appointments to a request a section 8 Formal Review of his application of February 2018. The Complainant was advised by letter of 21 June 2018, that the Commission had refused his appeal.

In his written submission to the Court, the Complainant submits that he had been treated unlawfully by PAS “in their assessment of [his] application for the position of Senior Transportation Officer”. He further submits that PAS’s refusal to invite him to interview was due only to his age and, therefore, amounted to discrimination within the meaning of the Act. The Complainant went on to reproduce for the Court the long list of career achievements and work-related experience that he had included in his original application form to PAS. Thereafter, the Complainant opines:

• “I believe my application for the Senior Transportation Officer demonstrated the requisite breadth and depth of Relevant Experience and Strategic Management & Change relative to shortlisted candidates because I know at least 4 of the successful candidates, as colleagues, one of whom is 27 years my junior. Therefore, I am convinced that their selection and my rejection by the shortlisting board could only be due to my age.”

• “it is not sufficient for the Complainant to have the belief that ‘over 30 years’ experience, including 10 years as Senior Executive Engineer in Transportation Section, Dublin City Council’ automatically gives him the requisite breadth and depth of experience & competency in assessment criteria for the position when compared to other applications … [L]ength of experience is not, of itself, determinative of the quality of his application when compared to other applications. It is a matter for the Shortlisting Board to assess the applications made and … it would be discriminatory if they accepted the length of service as an indicator of having the requisite breadth and depth of experience without assessing the evidence presented by each candidate in their application form.”

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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 is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Having regard to the submissions of the Parties in this case, and the extensive correspondence between them opened in the course of the appeal, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. The Complainant’s case is grounded largely on his belief that it was sufficient for him to list out his work-related experience in his application form submitted in February 2018 to PAS and this act alone should have guaranteed him progression to the interview stage of the recruitment process. In fact, it was incumbent on the Complainant himself to demonstrate to the Shortlisting Board in his written application - having regard to his undeniably extensive professional experience - that he met the criteria listed in the advertisement for the position so as to merit being shortlisted for interview.

In summary, therefore, the Court finds that no prima facie case of age discrimination has been made out by the Complainant. The appeal, therefore, does not succeed and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
MK	______________________
10 December 2020	Deputy Chairman