Complainant

Respondent

Anonymised Parties

A Former Civil Servant

A Recruitment Service

Representatives

Peter McKenna, BL

Claire Bruton, 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-00029828-001

23/07/2019

In October 2018, the position of unit manager in the government department was advertised for open competition.  The complainant had been in the job since 2005 and he applied for the vacancy that arose as a result of his retirement.  In January 2019, at the end of a competitive process, he was placed third on the panel of successful candidates and he was not appointed.  The complainant claims that he received less favourable treatment than the other candidates on the grounds of his age and he is seeking redress in accordance with Section 82 of the Employment Equality Act 1998.

Case Presented at the Hearing

At the opening of the hearing of this complaint on January 27th 2020, Mr McKenna raised a concern about the qualifications of the successful candidate.  He said that the complainant’s understanding is that the successful candidate for the role of unit manager was not a member of a specific English branch of a professional organisation.  In accordance with Section 95 of the Employment Equality Act, the complainant requested copies of the curriculum vitae (“CVs”) of the candidates placed first and second on the panel of successful candidates.  Mr McKenna claimed that this was material to the complainant’s case, as it could mean that the successful candidate did not have the qualifications for the role, as stipulated in the job advertisement. 

Secondly, in relation to the complainant’s case that discrimination occurred, Mr McKenna said that the issue of project management was introduced at the interview stage and was not included as a criterion in the job specification.

Thirdly, Mr McKenna said that the requirement to make a presentation on a five-year vision specifically discriminated against the complainant who, if he had been appointed, would have had to retire in less than four years, at age 70.

Finally, Mr McKenna argued that the notes kept by the interview panel were inadequate and that they contained no reference to project management.  He also said that the feedback given to the complainant summarised as “an excellent candidate in all competencies” was insufficient.

Chronology

In August 2017, the complainant reached the age of 65, which was then the age of retirement for his role as unit manager.  In accordance with Department of Finance Circular 13/1975, which provides for the retention of civil servants beyond their normal retirement age under certain criteria, he was retained for 12 months.  On August 31st 2018, when he was due to retire at age 66, his manager requested a further extension under the provisions of the same Circular, but this was refused by the Department of Public Expenditure and Reform (DPER).  The complainant was then retained on a daily rate of until May 2019, when his contract expired.

In August 2018, the complainant drafted a job description for his job and in October 2018, the role was advertised by the respondent.  The normal retirement age for civil servants is now 70, and in November 2018, at age 66, the complainant submitted an application.  Out of 19 people who applied, the complainant was one of 10 people selected for a first interview.  He was then one of the four applicants invited to attend the final assessment, which included a presentation followed by a second interview.  The interview board decided that the complainant was the third most suitable candidate for the role.

Discrimination

The topic for the presentation at the final interview stage was, “…please outline your vision and strategy for the (unit) over the next 5 years.”  The complainant claims that the requirement to provide a five-year vision was discriminatory because, at the time of the interview, he was 66 and the age of retirement is 70.  He argued that he was not in a position to deliver a five-year strategy and that “candidates under the age of 65 were placed in a more favourable situation on foot of this question.”

Secondly, the complainant submitted that the introduction of the criterion of project management during the competition marked a departure from the advertised criteria.  He claimed that project management is not directly related to the qualifications, attributes and skills required for the role and the job-holder has no duties or responsibilities in that field.  At his final interview, the complainant was asked for his views on “project management versus quantity surveying” and he said that a comment was made about the experience of other candidates in the field of project management.  For this reason, the complainant’s view is that experience of project management influenced the appointment process.  The candidate appointed to the role, as far as the complainant is aware, “had, almost exclusively, experience in project management” and she was considerably younger than him.

Thirdly, the complainant submitted that, because his line manager was on the interview board, the panel was not properly independent.

While not related to the issue of discrimination, the complainant said that the respondent failed to provide him with adequate feedback regarding his interviews.  He received a transcript of the interviews he attended on January 10th and 25th, but he considers this feedback to be insufficient in light of the Code of Practice for Appointments to Positions in the Civil and Public Service (“the Code of Practice”) of the Commission for Public Service Appointments (“CPSA”).

Direct Evidence of the Complainant

In response to questions from Mr McKenna, the complainant gave a background to his career in the government department, culminating with his appointment in 2005 as the manager in charge of his unit, at the grade of principal officer.  He said that he was due to retire in August 2017 at the age of 65.  He described the background to being employed then on a fixed-term contract for one year and, from September 2018 until May 2019 on what he described as “a daily rate contract.” 

Before the vacancy for his role was advertised, the complainant said that he drafted a job description and he submitted this to the personnel section of his department and to his line manager.  He applied for the job when it was advertised in October 2018.

Referring to the topic for presentation at the second interview stage, the complainant said that he was discriminated against when he was required to present a “vision and strategy for the next five years.”  He said that when he made his presentation, he referred to his concern about the five-year strategy. 

In the job description, the complainant said that there was no reference to project management and he was not involved in project management during his tenure.  During the interview, he said that he  was asked about a comparison between quantity surveying (QS) and project management.  He said that the transcript of the interview notes does not record this.  The complainant said that the successful candidate was a project manager with experience in engineering and that, at the interview, one of the interviewers commented that another candidate had commented about how useful it is to have project management experience.  The complainant’s said that this question was “a way of discriminating against me by making project management more relevant.”

When he received the outcome from his second interview, the complainant contacted the recruitment service and requested information about his application and the applications of the other candidates.  He was informed that the panel had concluded that he was “an excellent candidate across all competencies” but he questions the score of seven out of 10 in two competencies.  When the recruitment service decided that all the information he requested could not be provided, the complainant said that he made a complaint to the CPSA.  He received a response in January 2020 and a copy of this response was included in his book of papers at the hearing.  He said that, in his view, the recruitment service and the CPSA were “circling the wagons.”

The complainant referred to the response he received on May 14th 2019 from the formal reviewer in the recruitment service.  Regarding the five-year vision and strategy question, the reviewer found that none of the candidates were disadvantaged by this question and that the interview process was fully in line with the CPSA’s Code of Practice.  The complainant said that he disagrees with this finding.  He claims that, at the interview, the subject-matter expert asked him why he had not been able to achieve the strategy that he was recommending.  He said that he felt that the was being assessed about the way he had carried out his role.  He said that no details were given in relation to his scores of 7, 7 and 9 respectively, in relation to the three competencies.

Asked by Mr Kenna, “what to you think happened?” the complainant said that in his view, the head of his department wanted to recruit a younger, external person and a decision was made “to push me back into third place.”  He said, “they had to give me a second interview.”  He said that if the first person on the panel had not accepted the role, then, “there was a buffer of a second.”  The complainant made this comment because of the fact that the person who was placed first on the panel did not accept the position and the second most suitable candidate was appointed.

Cross-examining of the Complainant

Cross-examination commenced on the second day of the hearing, October 8th 2020.  Ms Bruton suggested to the complainant that a question around a five year strategy was a common question to be posed at an interview.  The complainant said that his problem is that “this discriminated against me.”  He said that he understood that he was being asked to implement this strategy over five years and he had less than four years to do so.  He said that he didn’t raise his concerns at the interview and he “took it at face value.”

Ms Bruton pointed out that the interview information did not say that the successful candidate would have to implement the five-year strategy and that none of the candidates could have known if they would be in the job for five years.  The complainant responded that anyone who takes a job assumes that they will be in it for five years.  He said that anyone under the age of 65 had potentially five years to implement the strategy, but that he only had four years.  He said that this is the basis of the discrimination that occurred.

Ms Bruton repeated that no one on the interview panel suggested to the complainant that he would have been required to implement a five year strategy, but the complainant said, “this is my interpretation.”

Ms Bruton referred to the note of the first interview with the complainant on January 21st 2019 in which there is a record that, at the interview, his former line manager, LM, asked him what the department where he works would look like in five years’ time.  Ms Bruton said that there is no suggestion in this question that the complainant wouldn’t be working in the Department in five years.  The complainant said that he has no difficulty having a vision as to how things should look, but that his difficulty is with implementing a five-year strategy.

Ms Bruton referred to the complainant’s assertion that the recruitment service and the CPSA were “circling the wagons” and that by this, he was suggesting that there was a conspiracy against him.  The complainant replied, “yes, you could say that.”  When she reminded the complainant that the CPSA has a statutory duty to oversee the fairness and integrity of the process to fill public sector roles, the complainant said, “I’m simply saying that, anecdotally, from talking to people over the years, the CPSA doesn’t very often overturn a decision.”

Ms Bruton said that the CPSA examined the five-year vision and strategy question and found that there was no issue with the question.  Referring to the conclusion of the formal reviewer that there was no breach of any principle in the CPSA’s Code of Practice, the complainant said, “I accept what they say, but I disagree.”

Referring to his assertion in his direct evidence on the first day of the hearing that the head of the department wanted someone younger for the job and that LM had “carried out his instructions like a good soldier,” Ms Bruton asked the complainant if he fundamentally believed that the department wanted the position filled by a younger person.  The complainant replied that he heard the head of the department talking about getting younger people into the organisation and he believes that LM carried out these instructions.

Ms Bruton referred to the complainant’s retirement at age 66 in August 2018 and the fact that LM proposed a further extension of his contract.  Ms Bruton asked the complainant if he was aware that the DPER had refused the extension and that LM had appealed against this decision.  The outcome was that the complainant was offered a consultant contract for three days a week.  The complainant said that he “had no issues with this” and that he got on well with LM.

Referring to the fact that he was placed third on the panel of successful candidates, Ms Bruton said that the complainant could have been appointed if the two people ahead of him on the panel had not taken up the job. 

A record of the interview notes was submitted in evidence by the respondent.  Under the heading of “leadership and strategic direction,” LM asked the complainant a question regarding the difference between project management and QS.  The note shows that the complainant answered, “We should do more than quantification.  I am not a project manager.”  He said, “it was mentioned to me at the interview that other candidates said that they could offer something useful from a project management background.”

Ms Bruton responded that this was never said, and that it would have been a breach of the recruitment service’s guidelines.  The complainant disagreed and said that he had “a clear recollection” of what was said.  Referring to the note of the interview, Ms Bruton said that the reason the question about project management came up was because the complainant himself raised the subject in response to an earlier question when he said, “I see a major role for Project Oversight Group – it should be central.  Currently it acts as a distributor, it should oversee projects.”  Ms Bruton suggested to the complainant that he appeared to appreciate that the QSs in the Department were involved in some project management work.  The complainant agreed that the “management of individual projects is what quantity surveyors do.”

LM then followed up his previous question by asking, “Is the QS now in an audit role – whistleblowing?” to which the complainant replied, “We should have an auditing role – opportunity to expand the Project Oversight Group – currently ‘watching’ more than ‘overseeing.’”   LM then asked the complainant about the difference between project management and QS.  Ms Bruton said that LM will say that the purpose of the question was to ascertain from the complainant if he thought that project management was part of the job of a QS.  The complainant said that his understanding of the question was that it was asking whether a QS should remain in quantity surveying or move into project management.  Ms Bruton suggested to the complainant that he understood the meaning of the question.

The complainant said that his issue is that the person who was appointed to the role is a project manager and, before she joined the Department, she worked as a commercial project manager for eight years. 

Ms Bruton said that, as the adjudicator, I cannot make a finding on who the most suitable person was for the role the complainant applied for, because the High Court, in O’Higgins v University College Dublin, [2013] ELR 146, determined that it was not its role “to substitute its views on the merits of candidates for those of the designated decision-makers.”

In her findings on the review of the recruitment process, the CPSA reviewer rejected the complainant’s suggestion that people with project management skills were at an advantage.

Ms Bruton asked the complainant why, if he was concerned about any lack of fairness that might arise from the fact that his line manager, LM, was on the interview board, he said that he was focussed on preparing for the interview and this came to his mind only afterwards.  He said that he wasn’t happy about LM being on the interview panel, but that he didn’t bring this to anyone’s attention.  He said that “someone else would have been more independent.” 

Ms Bruton said that, in the debriefing process after each interview, LM gave his opinion last, so as not to influence the other panel members.  This was done to mitigate the possibility of bias on his part and the possibility that he might influence the other panel members.  She said that, as a specialised, senior role in the department, it was appropriate for LM to be on the selection panel.  The complainant said that others may have been more suitable, particularly from a technical perspective.

Ms Bruton referred to the key duties of the job, as set out in the job specification under the title, “Principal Duties and Responsibilities.”  The complainant accepted that he did not include a reference to international research but he refuted any suggestion that he was not up to date with international research.  Ms Bruton also referred to the contribution of the department into reports, research and memos for government and to another specification which was not in his original draft and which related to consultation with relevant stakeholders.  The complainant said that the final version of the job specification was very similar to the one that he drafted.

The notes of the reviewer show that LM’s view was that the job that the complainant applied for was changing and that he might not have fully understood this.  The complainant said that no one told him that the job was changing.  Ms Bruton said that LM will say that the role was going to be different in the future.

Referring to changes in the role, Ms Bruton said that as a result of cost overruns in the Children’s Hospital project, there would be changes in way the job of the complainant would be done in the future.  The complainant said, “the fact that the Children’s Hospital had overruns, how could this change anything?” 

Ms Bruton asked the complainant why he never raised the issue of membership of the professional association with the CPSA and the complainant replied that he only became aware of this issue after the candidate was appointed.

Regarding the question from the subject-matter expert and why he had not achieved the strategy he set out in his presentation, the complainant said that he was “thrown” by this question.  Ms Bruton referred to the response from the reviewer who informed him that all candidates were asked similar questions regarding their previous roles.

Referring to the information he received after he was informed of his place on the panel, the complainant said that under two competencies, he received seven out of 10, which is the qualifying score.  He said that this score is not compatible with the finding that he was “an excellent candidate across all competencies.”  He said that he disagrees with the finding that there was no breach of the CPSA Code of Practice on recruitment.

Concluding her questions of the complainant, Ms Bruton said that it was understandable that he was embarrassed and upset at not being appointed.  She said that by holding an open competition, it was likely that more suitable candidates would emerge.  The complainant said that the responsibility of the recruitment service is to appoint the most suitable candidate and that, in his view, they failed to do so and, in this way, they have discriminated against him on the ground of his age.

Legal Submission

On behalf of the complainant and, citing the case of Valpeters v Melbury Developments Limited [2010] ELR 64, Mr McKenna submitted that there is “more than sufficient evidence” to engage Section 85A of the Employment Equality Act 1998 and to shift the burden of proof to the respondent who must rebut the presumption of discrimination and prove that there were non-discriminatory reasons for the unfavourable treatment of his client.  Mr McKenna also referred to the following case law precedents:

In Mitchell v Southern Health Board, DEE 11, [2001] ELR 201, the Labour Court relied on the Northern Irish case of Wallace v South Eastern Education [1980] IRLR 19 to demonstrate that, where evidence has been presented to show that a claimant received unfavourable treatment based on any of the nine discriminatory grounds, the burden of proving that discrimination has not occurred shifts to the employer.  Quoting from Wallace, the Labour Court determined that,

“Where a better qualified candidate is passed over in favour of a less qualified candidate, an inference of discrimination can arise.”

Once the burden shifts, “cogent evidence” will be required for the respondent to defeat the claim, as shown in Barton v Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332.

In his written submission, Mr McKenna said that evidence of unlawful age discrimination can be found where candidates of a particular age are treated less seriously than candidates of a different age.  It may be obvious from the employer’s conclusion that candidates in a certain age group are unsuitable or might not fit in or where an adequate appraisal or a fair assessment has not been undertaken.

In Moate Community School v Moriarty EDA 0718/2007, the Labour Court held that discrimination can be inferred from questions asked at an interview which suggest that age is a relevant consideration.  Mr McKenna also referred to the publication, “Employment Equality Law” (2012) by Bolger and others, where, at paragraph 8.96, it states,

“…discriminatory questions asked at interview or during the selection process have long been held by the Equality Tribunal to amount to unlawful discrimination in and of themselves.”

In MacGabhainn v Salesforce DEC-E-2007-048, Mr MacGabhainn successfully argued that he was discriminated against on the age ground when he was asked to state his date of birth in German at the interview.  The respondent had submitted that the objective of the question was to test his proficiency in German.

In Johnson v Louth VEC EDDA 0712/2007, where Mr Johnson alleged that he was discriminated against on the ground of his age, the Labour Court emphasised the following factors regarding the interview process:

1.  The interview and selection procedure were fully in compliance with the relevant Circular from the Department of Education and Science;

2.  The procedures were transparent and clear;

3.  The members of the interview board were independent of the employer, had extensive experience and were trained in anti-discrimination law;

4.  A pre-interview meeting was held at which the panel drew up questions on key areas, marks were allocated for critical attributes for the role, based on objective and pre-determined criteria.

Applying these factors to the complainant’s case, Mr McKenna submitted that:

1.  He received no meaningful feedback, apart from an indication that he was “an excellent candidate.”  The complainant claims that this feedback is not sufficiently in accordance with the Code of Practice of the CPSA.

2.  The procedure was not clear and transparent.  Of the six competencies identified in the information booklet for the role, marks were awarded for just three.  The criterion of project management was introduced during the process and the question regarding a five year vision and strategy discriminated against the complainant.

3.   The interview panel was not independent because it included the complainant’s line manager.

Regarding the record of the answers given at interview, Mr McKenna referred to the appeal to the Labour Court of the Department of Health in Department of Health v Gillen [2005] ELR 141, in which the Labour Court stated,

“…this Court has consistently stressed that interview boards, both internal and external, should be trained, and apply strict promotion criteria in advance with adequate markings and should keep comprehensive interview notes.”

Concluding his submission for the complainant, Mr McKenna submitted that the appointment process was unlawful in that it directly or indirectly discriminated against the complainant on the ground of his age.  He had held the position of unit manager for a number of years and had assisted with the drafting of the job specification.  Not only had he more fitting qualifications, he had more fitting experience for the job.  Mr McKenna submitted that based on these factors, the complainant has met the test of the burden of proof at Section 85A of the Employment Equality Act.

Background

In a written submission, the respondent described its role in the management of recruitment in the civil and public service.  There was no dispute regarding the facts related to the complainant’s application for the role.

The submission provided details of the members of the interview panel.  The chairperson was an independent human resources consultant with more than 30 years’ experience of recruitment.  The two members were the assistant secretary of the department where the complainant worked until May 2019 (who had been the complainant’s line manager and who we have referred to as “LM”) and an independent consultant.  This person is a former president of their professional association and is a subject-matter expert.  A representative of the recruitment service was also on the interview panel.

The members of the panel did not know the ages of the interviewees and age was not a factor in the assessment process.  A copy of the “Good Interview Practice” guideline was provided to the panel members and a copy was submitted in evidence at the hearing.

In circumstances where the complainant was selected for the preliminary interview and the second interview, no allegation of discrimination can arise in respect of the selection process or the first interview.  Candidates who are successful after the second interview are placed on a panel and vacancies which arise during the 18-month lifetime of the panel are filled from the panel.

The interview board members were briefed by the recruitment service representative regarding the importance of compiling a list in order of merit of the successful candidates, the criteria to be agreed and the assigning of questions to the three interviewers.  The representative cautioned the members against asking discriminatory questions and emphasised the necessity for their assessment to be based on the performance of the candidates at the interview and the information on their application form.

To ensure that he received no advantage or disadvantage, the views of the complainant’s line manager, LM, was taken last.  The fact that the nominee of the employing institution knows or works with a candidate is very common.  There was no conflict of interest in this respect, and no conflict of interest between the other two panel members and the complainant.

Out of 19 applicants, 10 were interviewed on January 10th 2019.  Four of these, including the complainant, were considered suitable to proceed to a final interview.  Each candidate was informed that the competencies to be discussed at the final interview were:

1.  Leadership and strategic direction;

2.  Management and delivery of results;

3.  Building relationships and communications.

The final interview was preceded on the same day by a presentation from each of the candidates.  The title of the presentation was, “In the context of the challenges facing (the government Department), please outline your vision and strategy for the (unit) over the next five years.”  The purpose of this topic was to allow the candidates to demonstrate their strategic vision and to identify challenges to how the vision would be achieved.  The topic was a recruitment tool and the candidates were not required to put their plan into action.

The complainant attended the second interview on January 25th 2019 and the notes of his interview were included in the respondent’s book of documents at the hearing.  During the interview, he was asked questions about his previous experience and about challenges he might face in the role.  He complains that he was disadvantaged by this line of questioning, compared to the two candidates who were placed first and second on the panel, because of his experience in the job since 2005.  It is the respondent’s position that it was entirely proper to explore each candidate’s previous experience at the interview, as their answers helped to evaluate their understanding of the role in future.  Like all the other candidates, the complainant was expected to discuss his previous experience and the respondent submits that this could have actually placed the complainant at an advantage compared to the other applicants.

Following the interviews with the four final candidates, the interview panel scored each one.  The complainant’s former manager, LM, went last in the scoring process.  It was the unanimous view of the panel that the complainant came third, scoring 23 marks.  The second candidate scored 25 and the first scored 27.  The fourth candidate was not considered suitable for the role. 

The final scores given to each of the candidates were arrived at based on an assessment of their responses to questions on the three competencies set out above and the quality of their presentations.  The complainant referred to project management at his interview and he was then asked some follow-up questions; however, project management was not introduced, as the complainant asserts, because it was brought up by another candidate and it was not added as an additional criterion.  The final score given to each of the candidates was based on their responses to questions on the three key competencies that were explored at the final interview.

Request for a Review of the Outcome of the Recruitment Process

In March 2019, in accordance with section 8 of the CPSA Code of Practice for Appointments to Positions in the Civil and Public Service, the complainant sought a review of the outcome of his interview.  A review was conducted by a formal reviewer in the respondent’s Corporate Compliance and Quality Assurance division and in May 2019, she concluded that the interview process was fully in line with the CPSA’s Code of Practice.  A copy of the reviewer’s findings was included in the evidence submitted at the hearing.  She found that none of the points submitted by the complainant raised an inference of discrimination for the following reasons:

1.  The requirement to present a five-year vision and strategy was not an expectation that a candidate would deliver on the plan.  The purpose of the topic was to give the candidates an opportunity to demonstrate strategic vision in the context of the role.

2.  In relation to the inclusion of LM on the interview board, it is common for a senior manager from a department to sit on an interview panel.  While LM knew the complainant and was his line manager, this does not show evidence of discrimination.  To avoid any conflict of interest, LM was required to give his views on the complainant’s responses only when the other members of the panel had already done so. 

3.  The reviewer found that the feedback provided to the complainant was clear and consistent.  His performance was considered to be very good or excellent and he was determined to be suitable for appointment.  Two other candidates scored more highly than he did.

4.  There was no requirement to implement a strategy for the unit over five years and questions regarding where the unit would be in five years were intended as an assessment tool.

5.  Each candidate was asked questions about their previous experience, as this is a useful way to assess competencies.  The complainant was treated the same as the other applicants in this respect.

6.  The reviewer found that there was no basis for the complainant’s contention that project management was introduced as an assessment criterion.  Project management was discussed with all candidates as this forms part of the duties of the role.  It was not a criterion in its own right and the reviewer concluded that it was appropriate for the candidates to be examined by the interview board in relation to their ability to carry out project management.

Evidence of the Complainant’s Former Line Manager, “LM”

LM said that he was the complainant’s line manager for two years before he retired.  He described the circumstances of the extension of the complainant’s term of office for one year after his normal retirement date and then for a further nine months on a daily rate basis.  Asked why he was kept on, LM said that the complainant liked his job and he was keen to facilitate him and “Brexit was on the horizon”.   In August 2018, with the DPER refusing to agree to an extension for another year, the daily rate contract arrangement was arrived at as a way to keep the complainant in the job for longer.

Setting out his experience of interviewing, LM said that he has a Masters’ Degree in Human Resources and he was the head of senior management recruitment with the respondent for more than 10 years.  He said that he is a trained interviewer and he has also instructed interview boards on how to conduct interviews. 

Ms Bruton asked LM to respond to the complainant’s statement that the head of the department wanted a younger person in the role of unit manager.  LM said that he is offended by this assertion.  He said that he has worked in the civil service for 38 years and he prides himself on his integrity.  He said that he was a member of the team of civil servants that drafted the legislation to establish the recruitment service.  He said that it is an offence to interfere in a recruitment competition.

Asked about the purpose of the presentation topic, to set out a vision and strategy for the unit over the next five years, LM said that its purpose was to give the candidates the opportunity to share their vision and capacity to look towards the future and to suggest the goals and objectives that might be prioritised.  He said that, in an interview process, it is best practice to have more than one method of assessment and the presentation allows the candidates to speak freely.  In competitions for senior roles, a presentation is always a component of the assessment process.

Asked about the problem identified by the complainant, that it was discriminatory for him to be asked to present a vision for five years, LM said that he has developed a number of strategic plans in his roles in the civil service, but, for various reasons, he has seen out almost none.  He said that strategies change and evolve and are implemented through an annual business process.  Asked if the candidates were expected to implement their strategic plans, LM said that the purpose of the exercise was to demonstrate strategic thinking, and not the ability to implement a strategic plan.  He said that the candidates who had not worked in the Department would have had no useful knowledge of its strategic direction and their presentations would be based on their personal aspirations and ideas.

Another issue identified by the complainant as discriminatory was the presence of LM on the interview board.  In response to this, LM said that there is always a representative from the recruiting department on an interview panel, and often, this is the line manager of the prospective job-holder.  LM said that his role on the panel was to examine how each candidate understood the scope of the job and its place in the overall department and in the country.

LM said that he gave his assessment of each candidate when the other panel members had given their assessments.  He was asked about the complainant’s allegation that, during the second interview, he referred to other candidates having experience in project management.  LM said that he did not quote any other candidate at the interview with the complainant.  Referring to the notes of the interview on January 25th 2019, LM said that the reference to QS versus project management “was intended to scope out the parameters” of the role.  He said that he was trying to examine if the candidates understood that a quantity surveyor needs to understand project management.  He said that the job-holder must be able to cost a job at various stages of a project.  Project management was not a criterion in the job specification and the department did not set out to look for a project manager.  At the same time, the department is responsible for projects with a budget of €1.6bn, apart from the major focus on flood relief.  LM repeated that he wasn’t looking for a project manager.

LM said that the job description that was used in the job advertisement was slightly different from the one which was drafted by the complainant in August 2018.  He said that any organisation going out to recruit for a senior role “doesn’t re-invent the wheel.”  He said that “you have to critically examine the role and see how it has changed.”  A job may have acquired new duties and be part of a new structure.  In the case of the role that the complainant applied for, and from which he had retired, the breadth of the job in the future would be at a higher level, into the civil and public service generally.  Referring to a high profile project that had significant cost overruns, LM said that there was a debate ongoing about the role of QS in monitoring and tracking the costs of a project and in overseeing the procurement strategy. 

LM said that in his view, the complainant didn’t fully understand how the job was being pitched after his retirement, and that he wanted to ensure visibility of the QS function right across the organisation, not just regarding buildings, but also flood mitigation and significant technical and engineering projects.

Concluding his direct evidence, LM said that the candidates placed first and second on the panel made stronger presentations compared to the complainant.  One of the candidates conducted very impressive research using data from a tracker developed by the DPER to track projects under the National Development Plan.  The other candidate had experience of major international projects and of working across cultures.  Asked to comment on the complainant’s allegation of discrimination on the basis of his age, LM said that his efforts to keep the complainant on in the job after he was due to retire at 65 isn’t consistent with this argument.

Cross-examining of the Former Line Manager

For the complainant, Mr McKenna asked LM about the requirement to make a presentation on a five-year strategy.  He said that the complainant would not be able to conceptualise the role over five years, because, if he had been successful, he would have had to retire before he reached the age of 70, which would occur in less than four years after his commencement.  LM said that the complainant was not required to implement a five-year strategy, but to develop a five-year strategy.  LM said that if he was conducting the interview tomorrow, he would not reduce the timeline to less than five years.

Mr McKenna asked LM about the feedback given to the complainant regarding his interview.  He was scored as follows on the three competencies that were the focus of the interview:

Leadership and strategic direction:  7

Building relationships and communication:  9

Management and delivery of results:  7

LM said that these were excellent scores and the feedback that the complainant was an “excellent candidate across all competencies” was accurate.  Mr McKenna suggested that, contrary to the Code of Practice of the CPSA, this feedback was not clear, specific or meaningful.  LM said that the scores are specific and the feedback was clear.  He agreed that the interview notes are not a verbatim account of what was said at the interview.  He vehemently disagreed with the complainant’s assertion that reference was made to another candidate’s opinion about the value of project management to the role.

Referring to the interview notes, and the last question under the heading of “leadership and strategic direction,” Mr McKenna said that the question regarding project management versus QS shows that project management was introduced as a criterion for the role.  LM disagreed and said that the job was as the unit manager and not a project manager.  Mc McKenna suggested that the successful candidate has more proficiency in project management compared to the complainant and she is also younger.

Evidence of the Subject-matter Expert

This witness, who I will refer to as “SME,” was a member of the interview board and he gave detailed evidence regarding the status of the successful candidate as a chartered member of her professional association.

Ms Bruton referred SME to the question he asked under the heading of the competency, “management and delivery of results.”  This question arose following the complainant’s presentation and SME asked him why he had not implemented his ideas earlier.  SME said that this was an obvious question following the complainant’s presentation in which he said that he had ideas about the vision and strategy of the organisation.  SME said that he asked the complainant if he had put into practice what he had presented.  He said he asked the other candidates a similar question regarding their current role.

Regarding the successful candidate and the complainant’s view that she is more experienced as a project manager than a unit manager, SME said that her CV showed that she had worked at the level of a unit manager. 

Regarding the candidate placed first on the panel, SME said that, from all the interviews he has done over the years, this candidate was very impressive.  He said that there was unanimity regarding the scores given to the final candidates.  He said that there was never any suggestion that the complainant was too old for the role, and he was taken aback by the suggestion that LM was “conflicted.”  He said that he is very strongly of the opinion that the process was fair and equitable.

Nothing of consequence arose from the cross-examining of this witness.

Evidence of the Chairperson of the Interview Panel

The chairperson of the interview panel, who I will refer to as “CIP,” said that she has 30 years of experience as a human resources consultant and she trains people on how to conduct competency-based interviews. 

Ms Bruton asked CIP about the complainant’s contention that he was informed at his interview that other candidates had mentioned the benefit of project management experience.  CIP said that this was highly unlikely and, if a question had followed from this, she would have directed the candidate not to answer.

In response to the rationale for the scores given to the three successful candidates, CIP said “our view was that the first and second candidates had a broad view of the role, an ambitious vision and were more outward-focussed.”  She said that she saw no evidence, overt or covert, that the head of the department influenced the outcome of the recruitment process or that there was a desire for a younger person to get the job. 

Cross-examining of the Chairperson of the Interview Panel

Mr McKenna asked CIP about the feedback given to the complainant that he was “an excellent candidate” and the relative sparseness of this information compared to the CPSA’s Code of Practice which recommends that feedback is “clear, meaningful and specific.”  CIP said that this requirement applies to candidates who don’t make the grade and who are considered not suitable for the role they have competed for.  The complainant was found to be suitable for the job and might have been appointed if the first and second candidates had refused the offer, or if, during the first 18 months in the job, the second candidate had left.

Legal Submission

The complainant alleges that some of the questions he was asked at his second interview raised an inference of discrimination on the ground of age.  In relation to the onus of proof which is on the complainant, in the form he submitted to the WRC in which he sets out his complaint, Ms Bruton submitted that he failed to demonstrate any facts from which discrimination may be inferred.  Following a fair and transparent selection process in which all the candidates were treated equally, the respondent can demonstrate that two candidates scored higher than the complainant.  These two candidates provided evidence to the interview panel of greater competency for the role.

Like the complainant’s submission, the respondent also referred to the Labour Court case of Valpeters v Melbury Developments Limited [2010] ELR 64, concerning discrimination on the ground of race.  Here, the Court described the burden of proof at Section 85A of the Employment Equality Act being “fairly and squarely on the complainant.”  Ms Bruton asserted that no evidence showing an inference of discrimination has been provided to me to show that the complainant was treated in a discriminatory manner.  In particular, Ms Bruton argued that the complainant “has adduced absolutely no evidence of any relationship or link between his age and the outcome of the competition” for the position he applied for.  She said that it appears that, because he had held the position, his view is that he was the most suitable candidate.  This, she said, “flies in the face of the objective nature of the competition process and the careful evaluation conducted by the interview panel.”  

Citing another Labour Court case, that of Moore Walsh v Waterford Institute of Technology, EDA 042, the respondent’s submission pointed to the function of the Labour Court, and now my function, as the adjudicator, not to substitute my views on the merits of the candidates for the role of unit manager, but rather to ensure that the selection process was not discriminatory. 

In O’Halloran v Galway City Partnership, EDA 077, the Labour Court stated that the qualifications or criteria required by candidates are a matter for the employer to determine and, provided that they are not indirectly discriminatory on any of the nine grounds, it is not for the Court to determine on their appropriateness.  It is only if the selection criteria are applied inconsistently to the candidates, or if an unsuccessful candidate is clearly better qualified in respect of the criteria that an inference of discrimination can arise.  It is the respondent’s case that, no discriminatory criteria applied in the competition for the unit manager role.

In its determination in O’Higgins v UCD, ELR 146, the Labour Court distilled the findings from a number of authorities into eight principles which combine to provide cogent evidence that discrimination has occurred:

1.  It is for the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination;

2.  If the complainant discharges that burden, it remains for the Court to decide of those facts are of sufficient significance to raise an inference of discrimination;

3.  It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts.  It is sufficient if it is within the range of presumptions that can be properly drawn from those facts;

4.  In cases regarding the filling of a post, it is not the role of the Court to substitute its views on the candidates for those of the designated decision-makers.  Its role is to ensure that the selection process is not tainted by discrimination;

5.  The Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality is the result;

6.  A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination;

7.  Where a prima facie case of discrimination is made out and where the respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision, the complaint will be made out;

8.  The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration must be approached with caution.

Ms Bruton argued that none of these principles were demonstrated by the complainant. 

In a finding of the Equality Authority regarding a promotion competition, Cooke v UCD, DEC-E2010-994, the Equality Officer could find “no convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified” as the successful candidates.  For this reason, the Equality Officer found no evidence that the selection process was discriminatory.  It is the respondent’s case that, in the complaint under consideration here, the complainant was judged and assessed in an objective manner on the basis of the three identified competencies. 

Ms Bruton referred to two further precedents from the Equality Tribunal; a Female Employee v a Printing Company, DEC-E2008-022 and Mancini v University of Dublin, DEC-E2011-021.  In the former, the Equality Officer found an inference of gender discrimination as a result of a lack of transparency, the absence of a formal marking scheme and the failure to retain interview notes.  Ms Bruton asserted that these flaws cannot be attributed to the present case.

The complainant feels he should have received higher marks that the candidates placed first and second on the panel.  In Mancini, the Equality Officer concluded that,

“…no evidence of age discrimination can be drawn from the allegation that the successful candidate should, in the complainant’s view, been given lower points than she was or that she herself ought to have received higher marks in some of the categories than what had been awarded.”

Concluding the respondent’s case, Ms Bruton said that the complainant’s claim that he was discriminated against on the ground of his age is not supported by evidence and should be rejected.

Request for the CVs of the Successful Candidates

For reasons associated with data protection, Ms Bruton, for the respondent, said that the respondent was not required to produce the CVs of any other applicant.  In this regard, she referred to the case at the Court of Justice of the European Union (CJEU) of Kelly v the National University of Ireland, Case C-104/10.  Here, the CJEU decided that,

“Article 4 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions and Article 1(3) of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 76/207 must be interpreted as meaning that they do not entitle an applicant for vocational training to information held by the course provider on the qualifications of the other applicants for the course in question…”

The respondent’s case is, that to meet the qualifications criteria for the role, it is sufficient to be a member of the association for the profession in Ireland.  Evidence was given on this matter by a former vice president and president of the association in Ireland.  He said that the society in Ireland was granted a licence to permit its members to use a particular designation.   He said that he is satisfied that the successful candidate met the criterion regarding the professional qualifications for the job.  The witness said that the successful candidate was a member of the English and the Irish professional associations.

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 (2)(f), the “the age ground” islisted as one of the nine discriminatory grounds.  The complainant argues that he was not appointed to the role of unit manager because of his age.   

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 responsibility is on the complainant to show that, based on the primary facts, he has been treated less favourably than a younger person.  On behalf of the respondent, Ms Bruton referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Primary Facts

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

1.  From an initial cohort of 19 applicants, 10 were invited for a first interview for the role of unit manager, including the complainant.  On January 25th 2019, the complainant and three others were invited for a second interview, at which they were required to make a presentation on their vision and strategy for the unit over the next five years.

2.  At the end of the recruitment process, with a score of 23 out of 30, the complainant was considered to be the third most suitable person for the role.

3.  The most suitable candidate in the order of merit, with a score of 27, did not accept the job offer.  It was then offered to the second most suitable candidate, who had a score of 25 and she was appointed to the role.  While we do not know her age, it is accepted that she is younger than the complainant.

4.  The record of the complainant’s second interview shows that, under the competency heading of “leadership and strategic direction,” he was asked a question about the merits of QS versus project management.  The candidate who was appointed to the role has experience of managing projects.

5.  On March 24th 2019, in accordance with the review procedures in the Code of Practice for Appointment to Positions in the Civil and Public Service, the complainant requested a formal review of the decision not to appoint him to the role.  On May 14th, the formal reviewer concluded that the interview process was fully in line with the Code of Practice.  The complainant did not appeal against this finding.

As set out by the Labour Court in the Valpeters decision, to establish that discrimination has occurred, I must find that, in respect of the outcome from of the competition for the role of unit manager, “there was evidence of some weight from which it could be concluded” that the complainant was treated less favourably because of his age.

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 age ground. 

From a societal perspective, the benefits of remaining at work after the traditional pension age of 65 is set out in the Code of Practice on Longer Working (Statutory Instrument 600/2017).  For civil and public servants, this aspiration is enshrined in the Public Service Superannuation (Age of Retirement) Act 2018, which provides for an increase in the compulsory retirement age for civil and public servants recruited before April 2004 from 65 to 70. 

This is the context in which the complainant applied for the role of unit manager in the government department, a job he carried out satisfactorily since 2005.  There is nothing to prevent a person up to the age of 70 applying for and being appointed to a job in the public service, and it is my view that, in selecting him for a first and second interview, the respondent was open to the complainant being appointed to the role.  At the conclusion of the selection process, the complainant was considered to be the third most suitable person, an outcome he finds incongruous, considering he had been doing the job for 13 years.

Unlike recruitment in the private sector, where one candidate is offered a job and the other applicants are normally rejected, public sector recruitment results in a finding that a candidate is either suitable or not suitable, based on an objective score.  There is no limit to the number of candidates who may be deemed suitable and this depends solely on the points that result from the final interview.  The suitable candidates are then ranked in order of merit.  If the most suitable candidate rejects a job, an offer is made to the next most suitable person, and so on, until an appointment is made.  In general, a panel of suitable candidates is maintained on a “live” basis for between 18 months and two years, and vacancies that arise during that period are filled from the panel.  If the second most suitable person had not accepted the job of unit manager in January 2019, the complainant would have been appointed.  It follows therefore, that there was a one in three chance that the complainant could have been appointed.  I find this outcome to be inconsistent with any intention to discriminate against him because of his age.

It is a fact therefore, that the complainant was deemed to be suitable for the job, and that he could have been appointed if both of the top two candidates had not accepted the offer.  To succeed in a complaint of discrimination therefore, the complainant must show that the two people placed first and second on the panel were less suitable than him or, that some unfairness arose in the manner in which he was treated during the competition.  His complaint relies on both of these arguments and further, he suggests that the interview board conspired to ensure that a person younger than him was appointed. 

Considering the first possibility, the complainant claims that he was discriminated against because the person appointed to the job was less suitable than him.  However, and I make this point with the highest respect to the person who was appointed to the role, the intention of the interview board was to select the person to whom they awarded 27 points.  The complainant did not make his views known regarding the suitability of this candidate, but instead, he argued that the person who accepted the job was experienced in managing projects and was from an engineering background and that this made her less suitable than him.  He also claimed that she was not properly a member of her professional body, an argument which I am satisfied has no basis in fact.  To make out a case that he was discriminated against, the complainant must show that both the first and second candidates were less suitable than him, and, I find that, with respect to both, he has failed to so. 

The second argument the complainant makes is that the title of the presentation he was required to deliver at the second interview resulted in discrimination against him, the questions he was asked at the interview were unfair and that he was disadvantaged because his former line manager was on the interview board.

Regarding the title of the presentation, “…outline your vision and strategy for the (unit) over the next 5 years,” it is clear to me that this was an aspirational challenge, and not an expectation that the candidate would deliver the strategy over five years.  It would be ludicrous for any government department to seek to implement a strategy presented by a candidate at an interview, as this would mean that departmental objectives would have to be amended to fit in with potentially “blue sky” thinking on the part of an external candidate.  In this respect, it occurs to me that the complainant was in a stronger position than the external candidates, because he could tailor his presentation to fit with his insider knowledge of the department’s strategic plans.

The complainant claims that the questions he was asked at the interview concerning where he saw the unit in five years was also discriminatory, because he would have had to retire before five years had elapsed.  It is apparent to me that this question was not unreasonable, and not outside the capability of the complainant to answer comfortably.  Like the title of the presentation, it is an aspirational question, and not based on a requirement to be in the role in five years. 

Finally, regarding the questions asked at the interview, the complainant claims that it was unfair to ask him why he had not implemented his ideas when he was in the job.  While this might have been a tough question, it was not unreasonable and not related to his age.  The same question was addressed to each of the candidates, concerning their current roles. 

The complainant claimed that the inclusion of his former line manager on the interview board placed him at a disadvantage compared to the other candidates.  I do not accept this argument.  At the hearing, it was apparent that LM rated the complainant highly and that he was instrumental in facilitating his desire to remain in the role after his normal retirement date.  It is standard procedure for a hiring manager to participate on an interview panel and no unfairness, and certainly no discrimination arises from this.  It occurs to me that the previous working relationship between LM and the complainant may have worked to his advantage rather than the opposite.

Having considered the evidence at the hearing, it is my view that the complainant was interviewed by three of the most experienced and qualified professional recruiters in Ireland, whose aim was to find the best person for the job.  I am entirely satisfied that there was no conspiracy to somehow rig the outcome so that he came third in the order of merit and it is disheartening to observe a former senior civil servant express this view about other public servants.  The complainant’s case appears to be based on his belief that, having held the position of unit manager for 13 years, no one could be found who might be more suitable.  While he had deep knowledge and experience and is a highly qualified professional, like the outcome in the Labour Court case of Mitchell v Southern Health Board, he has not established that he was “passed over in favour of a less qualified candidate.”  Like Ms Mitchell, the complainant was firm in his opinion as to the superiority of his own qualifications and experience relative to that of the successful candidate, but these opinions were unsupported by any evidence beyond his own.  It is apparent that the interview board concluded that, compared to the complainant, two other candidates were slightly more suitable and that this conclusion was reached following a fair competition.

The complainant argued that the feedback he received from the formal reviewer was inadequate and that it did not address his concerns.  I reject these complaints and I note the thorough and comprehensive response from the formal reviewer to the complainant’s letter of March 24th 2019.  I also find that his concerns about the feedback are not relevant to the claim of discrimination.

Conclusion

I have carefully considered the complainant’s evidence at the two days of hearings on January 27th and October 8th 2020.  I accept that he must have been disappointed when he was not awarded higher marks following his interview on January 25th 2019, with the result that he was not appointed to the job he had held for 13 years.  Following the principle established in the case law referred to by both sides at the hearing, and specifically in Valpeters v Melbury Developments, I find that the complainant’s evidence is not of sufficient significance to raise a presumption of discrimination.  As a result, the responsibility for proving that discrimination did not occur does not shift to the respondent.

I have concluded that the complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination.  Based on this conclusion, I have decided that his complaint is not well founded.

Discrimination on the age ground