Complainant

Respondent

Anonymised Parties

A Higher Executive Officer

A Government Department

Representatives

Conor Quinn BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032597-001

29/11/2019

The complainant is a higher executive officer and in 2019, she applied for promotion to the grade of assistant principal officer. She was shortlisted with 71 other candidates and she attended an interview in May 2019. On June 7th 2019, 25 people were appointed to the panel from which vacancies for APs would be filled, but the complainant was not appointed. Her case is that the reason she was not placed on the panel is because she is over 55. She claims that the number of people in her age group who were “panelled” is very low, compared to younger people. She also claims that the breadth and depth of experience required to get through the shortlisting process was not reflected in the outcome of the interview process. She said that she believes that she did a strong interview and “there is sufficient significance to raise a presumption of unlawful discrimination.”

The complainant and the respondent provided written submissions in advance of the hearing of this complaint on February 7th. On February 10th, the complainant sent a supplementary document for my consideration and a reply was received from the Chief State Solicitor’s Office on March 19th. In my efforts to reach a conclusion on this complaint, I have taken account of this additional correspondence.

The Complainant’s Direct Evidence

At the hearing, the complainant said that she was rejected by the interview panel for promotion to the grade of AP, despite being fully qualified and having extensive experience.   At her interview, she said that she gave strong examples of her competencies, she was clear and articulate and she provided further information in follow-up questions. The complainant is an experienced interviewer herself and she is confident that she did a good interview. She said that she would question whether each candidate was objectively assessed and she is concerned that an affirmative policy may have operated to give an advantage to a particular group. If this was the case, she argued that it should not be at the expense of another group.

The complainant has estimated that, of the 71 shortlisted candidates, around 10 would have been in the over 55 age range. On this basis, she thinks that around three candidates over age 55 should have been appointed to the panel. After the interview, she said that a colleague was successful in being appointed and this person informed her that he was the only person in that age group to be panelled.

The complainant also raised the issue of the grade of administrative officer having the same opportunity as HEOs to apply for the AP posts. This results in them competing with HEOs, who are more generalist, with longer service and a broad breadth of experience. She said that the AOs come from legislative and policy areas, giving them experience which is advantageous. However, the complainant’s view is that the work of HEOs is more closely aligned with the core competencies of APs, particularly, the requirement to manage, train and mentor staff. She claims that no weight is given to this experience.   During the 18 years that she has been a HEO, the complainant has trained 40 staff members, including clerical and executive officers and lawyers.

When it comes to promotion, the complainant said that it should be no consequence whether one enters the civil service at a clerical grade, as she did, or a graduate grade, which is the case for AOs. She said that her studies in sociology have shown that intelligence is not confined to a particular group, but is evenly spread and if there is a bias towards the graduate grade versus the clerical grade, “this needs to be addressed with a little common sense.” She argued for a more even distribution of promotion between the grades, allowing for upward progression for both. Alternatively, separate competitions could be held for each grade, with an even distribution of promotions for both, based on the numbers in each grade.

Having been 18 years as a HEO, the complainant said that she and many of her colleagues have spent half their working lives at this level, having a legitimate expectation of moving to the next grade. She claims that the promotion of older people in the Department is “tainted with bias” and many of her colleagues see little point in applying for promotion because they think that the Department doesn’t want to invest in older staff.

Over the last 15 years, the complainant said that there have been very few competitions for promotion and this has meant that there has been less opportunity for HEOs to put themselves forward. Other Departments have held more frequent competitions. Even taking account of the recruitment moratorium from 2009 until 2013, she argued that more competitions should have been run. The lack of competitions over such a long period of time has had an adverse effect on longer serving officers. In 2002, when the complainant graduated with a science degree, she would have liked to take the AP exam, but there was no open competition to do the exam at that time.

Referring to section 33(a) of the Employment Equality Act 1998 (amended), the complainant submitted that it is not unlawful for employers to take positive action “to prevent or compensate for disadvantages linked to any of the discriminatory grounds.” She claims that this has resulted in a disadvantage for people who were not given an opportunity to compete for promotion due to lack of competitions over recent years. In the complainant’s view, because the experience of the HEO group is not given adequate consideration, the competitions place the AOs ahead of HEOs in the Department.

Referring to the case of Mitchell v Southern Health Board, DEE 11, [2001] ELR 201, the complainant asserts that she has established the primary facts that lead to a presumption that discrimination has occurred and, on this basis, she contends that the burden of proving otherwise now shifts to the employer.

Cross-examining of the Complainant

The complainant is a lay litigant and the approach to hearing the evidence was reasonably informal.   When she finished making her submission, Mr Quinn asked the complainant some questions.

Included in the Department’s book of documents was the Office Notice issued in March 2019 with details of the competition for appointment to the position of AP. Clause 7 of this document sets out the provisions for a candidate who has not been appointed to the panel to seek a review of the decision of the interview board. Mr Quinn asked the complainant why she did not seek a review of the interview board’s decision. She replied that she had no faith in the process and she felt that it would be “a tick box exercise.” Mr Quinn suggested that, because she did not seek a review, she is not fully informed regarding the outcome of the interview process and the numbers from each grade that were successful.

Mr Quinn submitted that the complainant has not produced any evidence that a person younger than her who is less qualified or less suitable was appointed to the panel.   The complainant named a younger colleague that she claims has less experience that her, a person that she trained. Mr Quinn said that no evidence has been submitted that shows that this person is less suitable or less qualified than then complainant.

Mr Quinn asked the complainant about her assertion that, based on the numbers, three people over the age of 55 should have been panelled. The complainant said that she makes this assertion on the basis of the average age of the people who were shortlisted and the likelihood of success.

The Department provided a comprehensive submission at the hearing, the details of which I have considered. In summary, its position is as follows:

The complainant’s assertion that just one candidate who is over the age of 55 was appointed to the AP panel falls some way short of “prima facie” evidence of discrimination in accordance with the legal authorities. The complainant has not identified a comparator who is younger and less qualified than her.

If the Department had adopted the complainant’s approach, and sought to appoint people to the panel who are over age 55, this would have been unlawful and would have constituted discrimination against people from other age groups.

The only equal and lawful approach for the Department to take, and the approach it did take, was to score and ultimately select candidates solely on the basis of competence for the promoted role, judged against the six AP competencies and through a fair and transparent process overseen by the Public Appointments Service.

On behalf of the Department, Mr Quinn submitted that, while the statistics are not relevant to the respondent’s legal defence against the claim of discrimination, of the 25 people who were appointed to the AP panel, 16 were formerly HEOs and 6 were AOs. Of the remaining three, one was an accountant, one an engineer and one was from the executive officer grade. Mr Quinn said that the Department has no information regarding the ages of any of the candidates. The average length of service of the 188 people who applied for the competition was 15.6 years and the average length of service of the successful group of 25 was 15.2 years. The Department therefore argues that the level of experience of the candidates who were selected for the panel reflects the level of experience of the applicants and no preferential bias was shown to candidates with shorter service, who could be assumed to be younger.  

Evidence was submitted at the hearing by the AP in the HR Division who was responsible for the competition of March 2019 when the complainant applied for a promotion to the grade of AP. She said that the competition was run according to the criteria in the Code of Practice for Appointment to Positions in the Civil Service and Public Service. The competencies for the role were established in 2004, and have been updated since then.   They are listed as follows:

(i)             Leadership

(ii)           Analysis and decision-making

(iii)          Management and delivery of results

(iv)          Interpersonal and communication skills

(v)           Drive and commitment to public service values

(vi)          Specialist knowledge, expertise and self-development

APHR said that the shortlisting board used this framework when deciding who should go forward to interview, and the interview board used the same framework to develop questions for the interview. The shortlisting board is comprised of external experts and retired civil servants.   None of the members of this board are included on the interview board, the members of which are two retired principal officers and an independent chairperson. Members of the interview board must undergo training in anti-discrimination which involves an understanding of conscious and unconscious bias. The members of the interview panel all completed this training and also attended refresher training before the interviews for the AP panel commenced.

Before the interviews, candidates have available to them a “question dictionary” which gives them an opportunity to prepare for the interview itself. APHR said that the six competencies are examined at the interview, with each interviewer asking questions about two competencies.   Every candidate is asked the same questions. The interviews for this particular panel commenced on May 1st and went on for four days a week for one month. At the end of each day, the notes of the interviews were collected and stored. Following the interviews, the interview board met a number of times and using their notes, they completed the task of identifying the top 25 candidates in order of merit.

Each of the six competencies is scored out of 100 and, to be successful, a candidate must score 50 for each, but must also have an overall score of 360. The contemporaneous notes of the complainant’s interview were submitted in evidence at the hearing and show that she achieved a score of more than 50 for each competency, but that her overall score was 340. In response, the complainant said that she did not agree with her interview score.

Evidence was also given at the hearing by the chairperson of the interview board, a former Chief Executive Officer of the Equality Authority. CP described her background and experience of training on stereotyping and on dealing with conscious and unconscious bias. She said that there was no impropriety in any of the interviews and the candidates were scored based on their responses to the interview questions. She said that the candidate application form does not ask the candidates to state their ages and members of the interview board did not know the ages of the candidates who presented themselves for interview.

CP said that each of the interview board members takes ownership for two competency questions and the candidates are given equal time to answer the questions. Each candidate is expected to answer each question in five minutes. Each interview takes 40 minutes, and this is followed by a 20 minute de-brief to compile the scores. CP said that the board members do not always agree with each other regarding scores and the interview outcomes are reviewed at the end of each day. She said that “the person who performs most strongly gets the highest mark.” She said that the scoring is based on the interview on the day and the interview board members have access to no information other than the candidate’s application form. CP said that she is satisfied that there was no discrimination in the interview process and that it was fair to all the candidates.

The principal officer who is the head of the Department’s HR division gave evidence. She said that the Department’s mission is to promote “a safe, fair and inclusive Ireland” and that this drives the Department’s HR practices. She said that, in this regard, she holds her department to a higher standard of accountability than might be the case in other areas of the public service.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”).

“…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’…”

At sub-section 6(2)(f), the “the age ground” is listed as one of the nine discriminatory grounds.

At the hearing on February 7th 2020, and on the complaint referral form that she submitted to the WRC, the complainant claims that, because she is over 55, she has not been selected for promotion to the next appropriate grade, that of assistant principal officer.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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 effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than a younger employee.

The complainant referred to the Labour Court decision in Mitchell v Southern Health Board,to support her contention that, based on the primary facts, she was discriminated against. Mr Quinn made the opposing argument. Describing the evidential burden on the complainant in Mitchell, the Labour Court held that,

“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 those 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 Primary Facts

At the hearing of this complaint, the following primary facts emerged:

1.       Out of a group of 188 applications for promotion to the grade of AP, the complainant was one of 71 shortlisted for an interview in May 2019. Three candidates withdrew before the interviews.

2.       The ages of the applicants were not known to the shortlisting board or the interview board.

3.       The 68 candidates who were interviewed were scored on the basis of six competencies.

4.       All the candidates were asked the same six questions; one question focussed on each of the competencies, resulting in a score out of 100 for each one. The complainant scored more than 50 for each competency.

5.       To be placed on the panel, the candidates were required to achieve an overall score of 360. The complainant’s overall score was 340.

6.       The complainant identified one candidate who is younger than her who was appointed to the panel.

7.       Of the 25 successful candidates, 16 were HEOs.

Three days after the hearing, the complainant submitted information she received from a union representative indicating that there are 299 HEOs and 54.5 AOs in the Department. It is disconcerting that this person did not attend the hearing to validate his statistics and to answer questions regarding the source of the information he provided. The response from the Department on March 19th 2020 indicates that, when the AP competition was launched in March 2019, the breakdown in the grades was 315 HEOs and 361 AO or AO equivalent grades (which I understand to mean “professionals” such as engineers and accountants). The Department confirmed that the HEOs, AOs and AO equivalent grades were eligible to apply for the AP panel. At the hearing, we learned that 188 applications were received.

Findings

The opening section of the preamble to the Employment Equality Act 1998 tells us that the legislation is derived from certain EU directives on equal pay for men and women and equal treatment as regards access to employment. The objective of the legislation is to make “further provision for the promotion of equality between employed persons.” The Act goes on to provide that, in respect of access to employment and terms and conditions of employment, employers must not discriminate under nine specific headings, the “discriminatory grounds,” which, for our purposes here, includes the criterion of age.

To demonstrate that she has been treated less favourably than a person who is younger than her, the complainant must show that, by its actions, the Department, the shortlisting board or the interview board, or all three, selected a younger person who is less qualified for promotion compared to her. As she was included on the shortlist of candidates called for interview, she was not treated less favourably by the shortlisting board.

Concerning the actions of the Department, the complainant is aggrieved because, in her view, the failure to hold more regular competitions for the grade of assistant principal discriminates against HEOs. My understanding is that this contention is based on the possibility that if a candidate had an opportunity to compete for promotion more often, it would increase their chance of success. While there may be some merit in this argument, the possibility of success would apply equally to older and younger candidates. Also, it does not address the possibility that a candidate who does a range of practice or “mock” interviews might have a greater advantage over someone who doesn’t invest in this type of training. In any event, the criticism regarding the lack of opportunities for promotion has no direct bearing on the outcome of the AP competition of May 2019.

The complainant asserts that “the whole issue of promotion of the older cohort of HEOs in the Department is tainted with bias.” She presented no details of how this bias is manifested, simply asserting that many of her colleagues see little point in applying for promotion.

In every organisation in the public and private sector that operates a grade structure, the pyramid nature of the hierarchy means that considerably fewer people populate the senior grades compared to the grades “underneath.” While this can lead to disgruntlement and distrust among long-serving employees who have aspirations to move upwards, it does not follow that the organisation is biased against longer-serving staff. Despite the complainant’s criticisms in this regard, I note that of the 25 candidates appointed to the AP panel, the majority, 16 were HEOs.

This leaves a remaining question: Compared to how they considered younger candidates, was the complainant treated less favourably by the members of the interview board? At the hearing, the complainant said that a union representative who was successful told her that he was the only person over age 55 who was appointed to the panel. No evidence has been submitted to show that this is correct and it is regrettable that this union representative did not attend the hearing to substantiate his claim.

The interview board has no information regarding the ages of the candidates who were called for interview. At the hearing, we learned that the average length of service of the candidates appointed to the panel was 15.2 years, compared to 15.6 years for the group of 188 who applied. It is apparent from this statistic that no discrimination occurred based on service and, as length of service is generally concurrent with age,* it is reasonable to conclude that age was not a factor in scoring the candidates at the interviews.

In the email she sent to the WRC on February 10th 2020, the complainant submitted an alternative analysis of the average length of service of the group of 25 successful candidates. This outcome of this analysis is not clear to me and, in her email, the complainant says that “clarification may be needed in relation to how the averages were calculated.” It is my view that, based on both submissions and the evidence presented at the hearing, I have sufficient information to assist me with my findings and I do not intend to attempt to clarify the February 10th statistics here.

The complainant identified one candidate who is younger than her who was successful in being promoted. The objective of the public service appointments process is to appoint the best person for promotion to a particular grade, based on the competencies identified for the grade. It is desirable that no consideration is given to the age of a candidate and that they are selected based on the score they achieve at interview. I find that the fact that one person, and probably more than one, who is younger than the complainant was appointed to the AP panel does not demonstrate that discrimination has occurred. I also find that the complainant has not demonstrated that a younger person who is less qualified than her was promoted.    

Regarding the complainant’s assertion that, in accordance with section 33(a) of the Employment Equality Act (amended) some affirmative action was taken by the Department to promote younger candidates, no evidence has been submitted to support this contention. I am satisfied that the Department gives no consideration to the age of a candidate when considering suitability for promotion.

Conclusion

I refer to the Labour Court appeal of Don Johnson against the decision of the Equality Officer in respect of his complaint against County Louth VEC, EDA 0712. Mr Johnson alleged that he was discriminated against on the grounds of his gender and his age when he was not appointed to the position of assistant principal of a VEC school in County Louth in 2004. The point made by the Chairperson of the Court, Ms Jenkinson, is relevant here:

“The mere fact that a younger employee and an employee of a different gender was promoted in preference to the Complainant could not in itself constitute a basis upon which discrimination on age or gender ground could be inferred. It would be necessary to show that the complainant was better qualified or met the criteria for promotion to a greater degree than the younger / female successful candidate.”

While the complainant demonstrated to the shortlisting board that she is qualified for the role of AP, I find that, at the interview, she did not show that she met the criterion for promotion to a greater degree than the successful candidates. I find no evidence that HEOs are treated less favourably than AOs.

It is apparent to me that the complainant is a professional and dedicated public servant and that, over the past 18 years, she has done very important work in the Department and she has also helped others to develop. It is regrettable that her failure to be promoted has impacted on her sense of the value of her contribution to the public service. I would encourage her not to consider it as a rejection but rather, as a feature of a hierarchical grading structure in which the opportunity for advancement is reduced and the competition is greater at the higher levels of the organisation.

*I accept that that there may be a small number of older people with short service.

I have concluded that the complainant has failed to discharge the burden of proof which requires her to establish the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that her complaint under the Employment Equality Act fails.

Discrimination, age