Complainant

Respondent

Parties

Nicola Matthews

Department of Health

Representatives

Seán Carabini Fórsa

William Maher 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-00032456-001

25/11/2019

In 2019 the respondent advertised an internal competition for the role of Assistant Principal Officer. That role is a senior managerial one in the Civil Service. Based on the likely high interest in the position candidates were advised that shortlisting may apply to be based on their application form and on the written assessment of their manager. Based on the number of applications shortlisting was applied based on pre-determined criteria. Applicants were encouraged from the beginning of the process to ensure that their application form addressed the key competencies listed as important to the role and to provide evidence of how they demonstrated that competency. The complainant is a Higher Executive Officer. Based on an assessment of how well the candidate provided evidence of that competency they were shortlisted for interview. The complainant’s application was not shortlisted to proceed to interview.

The complainant alleges that she was discriminated against on the ground of age when she applied for an internal promotion to the position of Assistant Principal. She alleges and contends that the process was flawed arising from the following primary facts:

·       That the application form at Section 3 under General Education requested School or College attended and the period from- to, and the candidates age could readily be estimated from this information. In turn this gave rise to unconscious bias in favouring younger candidates based on the following data provided by the respondent:

·       That the board who shortlisted candidates for interview failed to apply best practice and apply scores to each competency and score candidates accordingly; that in turn would be probative of a transparent process to ensure that discrimination would not occur. There is no evidence of a fair and objective scoring system used by the board to shortlist candidates.

·       That the board failed to keep adequate records relating to their reasons for rejecting candidates as evidenced by the explanation given to the complainant concerning her application:

“you did not illustrate evidence of experience relevant to the competencies required for the Assistant Principal position, specifically in the area of leadership/drive

This explanation in the context of the complainant’s detailed submission is wholly inadequate and fails to give constructive feedback.

·        The board failed to apply a standard consistent scoring or marking framework to all applications, so that all candidates were consistently marked and assessed. In this context the absence of a transparent objective assessment applied to each candidate’s application, is highly likely to be flawed and more prone to unconscious bias and discriminatory outcomes.

Based on a probability analysis the data provided by the respondent demonstrates that older candidates had a significantly lower chance of being shortlisted all things being equal. This fact along with the other detailed factual deficiencies in the shortlisting process; reveal a decision making process lacking in transparency and objectivity. Therefore, a prima facie case has been made out where it may be presumed that the complainant was discriminated against on the ground of age and the respondent must rebut that presumption.

The overall probability of being selected was 30/47 or 63.8%. The following tables capture percentage shortlisted when compared to the number of applicants and the expected shortlisted percentage by age category based on this probability and this value is compared to the actual percentage shortlisted:

Other than the age band 50-65, all other categories were either equal to or greater than the expected probable percentage expected to be shortlisted. The margin of difference is significant.

Age discrimination is taken to have occurred if primary facts of significance, tend to show or give rise to an inference or presumption of discrimination.  It is argued that a prima facie case has been made out that gives rise to an inference of age discrimination.  The primary facts as detailed meets the threshold of significance that give rise to a presumption of age discrimination; requiring that the respondent must rebut that inference or presumption. The application form required information where the complainant’s age could be ascertained; the shortlisting process was absent of any marking system; the feedback provided to the complainant was demonstrably inadequate; the decision makers reasons for not shortlisting the complainant were absent of any detail and cogency. The tabular data provided by the respondent demonstrate that younger candidates had a much better chance of being shortlisted. These primary facts meet the required threshold of significance that give rise to a presumption of discrimination that is required to be rebutted.

The respondent refutes in all respects that the shortlisting process was inadequate, and that the complainant has made out a prima facie case that gives rise to a presumption of discrimination.

The complainant was given specific feedback by the board chair that stated she had not provided sufficient evidence to show that she met the requirements as detailed under the competency heading of Leadership; Drive and Commitment.

The complainant requested an informal review of the respondent’s decision based on section 8 of the Code of Practice for the appointment to positions in the Civil Service. The purpose of the informal review is to give the candidate an opportunity to meet with a board member. At the meeting feedback is provided to the candidate about her application when compared to those candidates who were shortlisted. The feedback is general in nature. However, the complainant requested a more detailed explanation to be given to her about why she was not shortlisted prior to attending the informal meeting. Participation in this informal process does not preclude a formal complaint being made. As the requested statement was not provided an impasse arose and no informal meeting took place. In tandem with this request the complainant also submitted a Form EE. -2 request as provided for under the Employment Equality Act, 1998 (Section 76-Right to Information) Regulations, 1999. In this form the complainant alleged discrimination on the grounds of Age and Gender.

Those allegations after proper inquiry were found not to have any merit

A shortlist board was formed that was comprised of 3 suitably trained senior managers. The boards composition was chosen to demonstrate gender and age balance. One member was within the age band of 50 to 65.

At the hearing evidence was given by that the shortlisting process was carefully and appropriately managed. The candidates were all put on notice about the importance of their submission or application form.  This form contained ample opportunity to demonstrate how they met the key requirements under a number of headings such as the competency framework, their skills and educational attainment.

The review was objectively and fairly conducted based on the criteria communicated to candidates in the information booklet that they all had been sent.  There was no limit placed on the number of candidates to be shortlisted. The board received training relating to unconscious bias and the Employment Equality Acts with specific reference to direct and indirect discrimination.

Each application was considered on its own merits against the criteria detailed in the information book. Board members were encouraged to examine each form separately and assess each application against the competencies. The board members individual assessments were then discussed by the full board with a final decision taken on each. The board made all decisions by consensus. At all material times, emphasis was placed on choosing candidates by the appropriateness of their experience and not their age.

From the above data analysis shows that 14 of the 30 successful candidates were aged 41 years and over. Also 50% of those in the 56 to 60 age category were shortlisted and this is a higher proportion than the 43% success rate for those within the 31 to 35 age group. These facts dispel any suggestion of age discrimination.  In any case the complainant’s statistical analysis is flawed as the facts as detailed show that there was sufficient spread in the age of those that progressed to the interview stage. The complainant’s statistical analysis is arbitrary and fails to take account of the individual’s application. There is no credible basis by which the complainant can assert a presumption of discrimination. There are no set of facts upon which the complainant can credibly base her case of age discrimination.

It is alleged by the respondent that the complainant’s allegations are mere assertions and opinions that don’t amount to primary facts and cannot be viewed as possessing sufficient significance so as to raise a presumption of discrimination and to meet the standard of proof as detailed at section 85A of the Act.

It is not up to the adjudicator to determine who was the most suited for this role, rather the key concern must be to determine whether the age of the candidate influenced the decision of the employer.

In Gillen v Department of Health and Children [DEC-2003-035] the Labour Court summarised case law on discrimination on the grounds of age as follows:

“In the cases involving both the Equality Tribunal and the Labour Court, a number of tests have been used in considering whether to draw an inference of age discrimination. Generally it is a combination of these factors which has convinced the Tribunal or the Court that an inference of discrimination is appropriate. The factors which figured most strongly to date are: -

(i) A marked statistical difference in success rates for different age groups in apparently similar circumstances O'Mahony -v- Revenue Commissioners DEC E2002-018 and ADE/02/09

(ii) Evidence of a policy to prefer a particular age group O'Byrne -v- Department of Public Enterprise DEC E2002-40.

(iii) Lack of transparency, or unexplained procedural unfairness, may create an inference of discrimination O'Byrne, An employee -v- A Government Department DEC-E2002-056, Madden v Aer Lingus DEC E2002-006.

(iv) A mismatch between formal selection criteria and those apparently applied in practice may also create an inference of discrimination (O'Mahony).

(v) A pattern of significant inconsistency with older candidates previous assessments. (O'Mahony)

Other factors, which can be persuasive, are: -

(a) Discriminatory questions asked at interview.

(b) The presence of a single successful appointee who was in the same age group as the complainants does not disprove age discrimination, notwithstanding that the appointee is of exceptional ability compared to other successful appointees.

Conversely, the following elements have weighed against an inference or a conclusion of age discrimination:

(i) The selection criteria appear objective and seem to have been honestly applied in practice Employee V Department of Foreign Affairs Dec-E2002-038.

(ii) Statistics suggested that success rates are broadly similar for different age groups, in apparently similar circumstances Byrne -v- FAS DEC - 2002-045.

(iii) The employer tried to ensure that the Interview Board included a mix of gender and ages (O ’Mahony)

(iv) Finally, the fact that the respondent's overall policy is not discriminatory has been given limited weight in several decisions (Sheehan -v- D.P.P. - DEC - E2002-047)

The respondent argued that the selection criteria were objective and honestly applied in practice. The statistics are not probative of a tendency to shortlist a specific age category and any difference between categories possesses no statistical significance. The interview board did consist of a mix of gender and ages. The Labour Court also in Johnson v Louth VEC [ EDAO712 (18 July 2017) stated that it would have regard to the following when determining if an inference of discrimination arose:

·       (if) the procedures were clear and transparent,

·       that the critical attributes of the role were based on objective, pre-determined criteria

·       and that the members of the board were suitably and independently trained.

Based on the evidence adduced, the respondent argued that in fact it has been shown that the process was objective, fair and could be characterised as possessing those features affirmed in Johnson.

Also in a Complainant v An Garda Siochana DEC-E2014-079 (a case in a booklet of case law provided at the Adjudication hearing by the respondent), the Equality Officer found no prima facie case of discrimination.

In Galway City Partnership v Josephine O’Halloran EDA077 the court specifically held that where:

“In this case the Court accepts the evidence of the witnesses for the Respondent that the interview board were not seeking counselling skills as a criterion against which the selection was to be made. The Court is further satisfied that the criteria agreed upon by the interview board was applied consistently to both candidates.

On evidence, the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted practice. The Court has held previously that where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views o their relative merits for those arrived at by the interview board”

The respondent based on these cases placed emphasis on the burden of proof that a complainant must meet based on a threshold of significance to support a prima facie case of age discrimination. Also that the tribunal or court should not second guess the board members and attempt to assess the candidates themselves and particularly so when the board is properly constituted.

For the reasons detailed the complainant has not established factual evidence of sufficient weight upon which the presumption of direct or indirect age discrimination may be raised. 

The complainant states that her employer is in breach of the age ground under section 6 (2) (f) of the Employment Equality Act 1998 as amended (the Act). She contends based on her age that she was treated less favourably than other candidates during the shortlisting process for the position of Assistant Principal. The complainant was in the upper age band.

She also relies upon section 8.1 (d) of the Act which specifically states:

Discrimination by employers etc.

8.— (1) In relation to—

 (d) promotion or re-grading, or

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

And section 8(4)(b):

(4) A person who is an employer shall not, in relation to employees or employment—

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

And section 8(5)(a):

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be  offered,

And sections 8(8)(a) and (b):

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

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

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

The complainant contends that the failure to use a formal evaluative framework gave rise to unintended indirect discrimination. In a response to the complainant dated the 19th of July 2019 the respondent addressed this concern as follows:

“Shortlisting marks

The nature of a short-listing process does not entail scoring of individual applications in respect of each competency as it would be as part of an interview process. It is a screening process and in common with how short-listing is generally done (by PAS for example), applications are examined by the Board who decide whether there is sufficient evidence on what has been provided in the application in respect of the competencies to merit bringing the person forward for interview in respect of that particular competition:

This is not to suggest that other candidates are necessarily unsuitable, or incapable of undertaking the job, rather that there are some candidates who have, on the basis of information provided, demonstrated that they are better qualified and/or have more relevant skills and/or experience”.

The complainant also refers to the ‘Commission for Public Service Appointments Casebook’ dated August 2017 and in particular at section d. Management of Shortlisting. In particular at d (5) concerning meaningful feedback and at d (6) the commission details how a marking scheme can be useful by encouraging selection boards to apply a high level of discipline and rigour to their evaluation of candidates.

Both the complainant and the respondent have relied on Gillen to advance their respective positions. The Equality Officer decision was subsequently appealed to the Labour Court.

In Gillen v Department of Health and Children (DEC-2003-035) the Labour Court summarised case law on discrimination on the grounds of age as follows:

“In the cases involving both the Equality Tribunal and the Labour Court, a number of tests have been used in considering whether to draw an inference of age discrimination. Generally it is a combination of these factors which has convinced the Tribunal or the Court that an inference of discrimination is appropriate. The factors which figured most strongly to date are: -

(i) A marked statistical difference in success rates for different age groups in apparently similar circumstances O'Mahony -v- Revenue Commissioners DEC E2002-018 and ADE/02/09

(ii) Evidence of a policy to prefer a particular age group O'Byrne -v- Department of Public Enterprise DEC E2002-40.

(iii) Lack of transparency, or unexplained procedural unfairness, may create an inference of discrimination O'Byrne, An employee -v- A Government Department DEC-E2002-056, Madden v Aer Lingus DEC E2002-006.

(iv) A mismatch between formal selection criteria and those apparently applied in practice may also create an inference of discrimination (O'Mahony).

(v) A pattern of significant inconsistency with older candidates previous assessments. (O'Mahony)

Other factors, which can be persuasive, are: -

(a) Discriminatory questions asked at interview.

(b) The presence of a single successful appointee who was in the same age group as the complainants does not disprove age discrimination, notwithstanding that the appointee is of exceptional ability compared to other successful appointees.

Conversely, the following elements have weighed against an inference or a conclusion of age discrimination:

(i) The selection criteria appear objective and seem to have been honestly applied in practice Employee V Department of Foreign Affairs Dec-E2002-038.

(ii) Statistics suggested that success rates are broadly similar for different age groups, in apparently similar circumstances Byrne -v- FAS DEC - 2002-045.

(iii) The employer tried to ensure that the Interview Board included a mix of gender and ages (O ’Mahony)

(iv) Finally, the fact that the respondent's overall policy is not discriminatory has been given limited weight in several decisions (Sheehan -v- D.P.P. - DEC - E2002-047)

In O’Halloran the Court was satisfied that the criteria agreed upon by the interview board was applied consistently to both candidates. The central issue in this case relates to an alleged difference in treatment based on age and a questioning the consistent application of the criteria in the absence of a transparent and objective process.

Section 85(A) of the Act states that the complainant must meet the following burden of proof to ground a presumption of discrimination, that sets a threshold that must be met before the respondent is then required to rebut that presumption:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination

The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference and in a recent case Public Appointments Service and Mr Bernard Lester (EDA 2022) the Court detailed what this meant:

Discussion and Decision

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

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

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

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

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

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

The respondent also references Southern Health Board v Mitchell as authority that the facts must be significant to raise an inference of discrimination.

The complainant provides the following data to argue that she did not receive equal treatment:

In Gillen the Labour Court referenced O’Mahony -v- Revenue Commissioners DEC E2002-018 and ADE/02/09, where a marked statistical difference in success rates for different age groups in apparently similar circumstances was a significant fact to raise the inference of discrimination based on age. Purdy also references the case as an example of age discrimination in Equality Law in the Workplace, Bloomsbury 1st edition 2015 at:

Promotion

[16.23]

The interesting case of O’Mahony v Revenue Commissioners involved various complainants who worked as civil servants on Custom and Excise in the Office of the Revenue Commissioners, all of whom were over 50 years of age. They applied for appointment to certain enforcement duties carrying an allowance, but were unsuccessful. The complainants argued that the success rate of candidates over 50 years of age was significantly lower than that of younger candidates, and contended that they were discriminated against on the basis of their age.

It was found by the Equality Officer that the candidates who were over 50 had been treated less favourably than younger candidates, based on statistical analysis and inconsistencies in marking. For example, one candidate was asked a discriminatory question as to why he would be interested in seeking a promotion at this stage of his career. The Equality Officer made various orders in this case in relation to each of the complainants, some requiring the Revenue Commissioners either to re-interview the complainants for the position or to appoint various complainants to the enforcement duties in accordance with the terms of the disputed competition.

The respondent argued that no statistical difference had been proven and argued that further analysis from this data set shows that 14 of the 30 successful candidates were aged 41 years and over. Also 50% of those in the 56 to 60 age range were shortlisted and this is a higher proportion than the 43% success rate for those within the 31 to 35 age group.

The complainant uses a mathematical probability calculation used by the Equality Officer in Gillen v Department of Health and applies that same calculation to each age band to the data provided to her by the respondent, to calculate the expected % to be shortlisted by each age range and compared against the actual. In contrast the respondent drills the data to find the most advantageous statistic in support of their position. On balance the complainant has shown that older candidates were less likely to be shortlisted and I determine that difference is significant. The complainant attributes that bias to a requirement to detail the period that an applicant attended school or college, to-from.  From this data it is argued that the age of the candidate is readily deduced.

The Court in Gillen also stated that (iii) Lack of transparency, or unexplained procedural unfairness, may create an inference of discrimination O'Byrne, An employee -v- A Government Department DEC-E2002-056, Madden v Aer Lingus DEC E2002-006.

The candidate provided a very detailed submission illustrating how she met the requirement detailed in the Leadership competency. The board assessed that she was not shortlisted because:

 “you did not illustrate evidence of experience relevant to the competencies required for the Assistant Principal position, specifically in the area of leadership/drive”.

 The correspondence of the 19th July 2019 to the complainant states:

The nature of a short-listing process does not entail scoring of individual applications in respect of each competency as it would be as part of an interview process

The respondent referencing Gillen states that the process was robust and fair because it had the following characteristics approved of by the Labour Court:

(i) The selection criteria appear objective and seem to have been honestly applied in practice Employee V Department of Foreign Affairs Dec-E2002-038.

(ii) Statistics suggested that success rates are broadly similar for different age groups, in apparently similar circumstances Byrne -v- FAS DEC - 2002-045.

(iii) The employer tried to ensure that the Interview Board included a mix of gender and ages (O ’Mahony)

(iv) Finally, the fact that the respondent's overall policy is not discriminatory has been given limited weight in several decisions (Sheehan -v- D.P.P. - DEC - E2002-047)

This requires analysis. As already stated the statistics do not suggest success rates are broadly similar for different age groups. The interview board did include a mix of gender and ages. On the facts the respondent states that the assessment did not entail scoring of individual applications in respect of each competency. This raises the question then, how did they consistently assess each individual application against the selection criteria? The respondent has stated they were assessed against the criteria as detailed in the information booklet and sent to all candidates. However, no adequate explanation has been given to explain the rationale that was applied to consistently shortlist one application over another.

The respondent defends the process and details that training was provided to the board relating to the Equality Acts and also the board was given a briefing on unconscious bias.

The Commission does not require scoring at the shortlisting stage; however, they do state that:

6. Marking scheme

The Commission accepts that it can be challenging to apply precise empirical measures when evaluating a candidate’s written application. However, it considers that the use of a marking scheme can be helpful in showing candidates how their application was evaluated by the selection board. Use of a marking scheme may also encourage selection boards to apply a high level of discipline and rigour to their evaluation of candidates. The Commission for Public Appointments in their Casebook 2017 state:

 Regardless of which category a candidate falls into, the CPSA considers that they deserve to have their application properly evaluated, as they have gone to the time and trouble of preparing and submitting it. Clear and meaningful feedback should be available to all candidates that shows how their application was evaluated by the board and which criteria they did not demonstrate to the same standard as those candidates invited to the next stage of the appointment process. The Commission expects Recruiting Organisations to explain the decision reached, but does not require them to provide career development advice to unsuccessful candidates.

Against this advice by the Commission on what constitutes good practice the communication given to the candidate should be assessed. However, it is also important to note that the formal complaint process was not used, as an impasse arose relating to her request for a more detailed explanation than that given to her. It is argued that at this formal stage the complainant would have received a more detailed explanation.  While the candidate was informed about the criterion which she did not demonstrate to the same standard as those candidates invited to the next stage, the explanation for that decision was at a very high level with no meaningful specifics given to show how she had not provided sufficient evidence when compared to those that were successful and that shows how her application was evaluated by the board.

The complainant has detailed primary facts that show, based on a statistical analysis of the data provided by the respondent, that older candidates had a significantly lower chance of being shortlisted. This fact along with the lack of transparency concerning the shortlisting procedure adopted by the board and the one sentence explanation given to her to explain why she was unsuccessful when considered together, are facts that prima facie raise an inference of discrimination. As stated in McCarthy:

Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Therefore, a prima facie case has been made out where it may be presumed that the complainant was discriminated against on the ground of age and the onus is on the respondent to rebut that presumption. I determine that facts are established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to her, it is for the respondent to prove the contrary.

As the onus is on the respondent to rebut the presumption of discrimination I now turn to the respondent’s case to rebut this presumption.

The criteria used for the competition was compiled as a result of a careful consideration of the necessary skills and competencies required for the position. As part of the competition notice candidates were informed that:

Please note that candidates should take particular care in the preparation of their application form as this may form the initial basis for screening as set out in 3.A. There is no guarantee that all applicants will be called for interview.

In line with best practice the shortlisting process was conducted by 3 experienced personnel of different gender and age with one member of the board in the 50-65 age band. The board also included an external member from outside the Department of Health.

Evidence was given at the hearing that members of the board were given training to ensure the elimination of bias of both a conscious and unconscious nature. Training also included best practice techniques to avoid direct and indirect discrimination and in relation to the nine grounds. The evidence of this training was provided at Exhibit 12.

A review of the slides show that the material mainly relates to conducting Interviews while this complaint relates to the shortlisting of candidates. The article attached is entitled: ‘The Interviewer’s Skills Handbook’. The matter for adjudication relates to alleged discrimination during the shortlisting of candidates to be called for interview. However, it is noted that the intent of the Department is to avoid conscious or unconscious bias during an interview that disadvantages a candidate and to recruit solely on merit.

The shortlisting process involved an assessment of all applications against the competencies as detailed by each candidate. Based on the candidates application the board was required to decide which application best demonstrated evidence of those competencies. Where the board found that the application provided sufficient evidence in relation to those competencies, the applicant was selected to be called for interview. Candidates dates of birth were not disclosed to the board. No limit was placed on the number of candidates to be shortlisted. Board members were encouraged to examine each form separately and assess each application against the competencies. Individual assessments were then discussed by the full panel with a final decision taken on each. The Board made all decisions by consensus.

The following information was requested in the application form and from this the complainants age can be deduced.

General Education

School or College Attended   Period (From-To)   Examination        Result

St Vincent’s Secondary School     1977-1982                   Leaving Cert          Anonymised

The training materials and briefing given to the board members primarily relate to conducting an interview and not shortlisting.

The respondent has an onus to rebut the prima facie case that has been made out by the complainant.

The board membership and composition reflects gender and age balance. It is to be noted that one member is in the age range of 50-65.

Candidates applications were not scored, neither was a mark given for each competency. The board made a decision based on consensus, assessing if the application had demonstrated the required level of evidence or not.

The Court in Gillen provided a very useful summary of case law relating to age discrimination. The evidence that the respondent relies upon is the robustness and rigour as detailed: clear objective criteria relevant to the role; an interview board reflected gender and age balance, a shortlisting process based on consensus, formal training relating to Equality Law and Unconscious bias. The complainant has made out a prima facie case based on facts that tend to show that older candidates in the age range 50-65 had a lower chance of being shortlisted. The process used by the board to select candidates was based on consensus and did not apply a formal marking system or formal evaluation framework. The feedback given to the complainant to explain the reason for not being shortlisted was terse and consisted of one sentence.

Case law has determined that:

(i) A marked statistical difference in success rates for different age groups in apparently similar circumstances O'Mahony -v- Revenue Commissioners DEC E2002-018 and ADE/02/09

(ii) Evidence of a policy to prefer a particular age group O'Byrne -v- Department of Public Enterprise DEC E2002-40.

(iii) Lack of transparency, or unexplained procedural unfairness, may create an inference of discrimination O'Byrne, An employee -v- A Government Department DEC-E2002-056, Madden v Aer Lingus DEC E2002-006.

(iv) A mismatch between formal selection criteria and those apparently applied in practice may also create an inference of discrimination (O'Mahony).

(v) A pattern of significant inconsistency with older candidates previous assessments. (O'Mahony)

 A decision to shortlist was based on an application form and a candidate providing evidence under each competency about how they demonstrated that competency by 1. Summarise your experience to date under this competency heading and 2. Describe at least one example that illustrates your competency under this heading. The respondent has not adequately presented evidence to show that the shortlisting process applied an objective evaluation process and framework that would rebut the presumption of discrimination. The failure to provide meaningful feedback and to give reasons for not shortlisting her having regard to the detail in her application is evidence of lack of transparency. On balance I determine that the respondent has not rebutted the presumption of discrimination. I therefore determine that the complainant has been discriminated against based on the age ground and contrary to section 8 of the Employment Equality Act 1998 as amended.

Based on the forgoing, I find that the respondent has discriminated against the complainant on the ground of age, contrary to the provisions of section 8 of the Employment Equality Act, 1998 arising from unintended indirect discrimination.

The complainant has detailed primary facts that show, based on a statistical analysis of the data provided by the respondent, that older candidates in the age range 50-65 had a significantly lower chance of being shortlisted. This fact along with the lack of transparency concerning the shortlisting procedure adopted by the board and the one sentence explanation given to her to explain why she was unsuccessful, which was not a sufficiently meaningful explanation based on the detail in her application, have met the threshold of significance as detailed in Mitchell. Therefore, a prima facie case has been made out where it may be presumed that the complainant was discriminated against on the ground of age and the onus is on the respondent to rebut that presumption. I determine that facts are established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to her, it is for the respondent to prove the contrary.

A decision to shortlist was based on an application form and a candidate providing evidence under each competency about how they demonstrated that competency by 1. Summarise your experience to date under this competency heading and 2. Describe at least one example that illustrates your competency under this heading. The respondent has not adequately presented evidence on the balance of probabilities to show that the shortlisting process and procedure applied selection criteria consistently and used an objective and fair evaluation process. Also the failure to provide meaningful feedback and to give reasons for not shortlisting her, having regard to the detail in her application, is evidence of lack of transparency. It has been established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to her, it is for the respondent to prove the contrary. As the respondent has not proven to the contrary, I therefore determine that the complainant has been discriminated against based on the age ground and contrary to section 8 of the Employment Equality Act 1998 as amended.

 The complainant has been discriminated against based on the age ground as detailed at section 6 (1):

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which — and contrary to section 8 of the Employment Equality Act 1998 as amended.

 And 6(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

And contrary to Section 8

8.— (1) In relation to—

(d) promotion or re-grading,

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

And section 8.4(b):

(4) A person who is an employer shall not, in relation to employees or employment—

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination

Section 82 states that

82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77

(e) an order that a person or persons specified in the order take a course of action which is so specified;

 (4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c ) or (1)(f ) shall be —

( a ) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) € 40,000,

The consequence of discrimination in this case is loss of opportunity to compete at interview for a promotion. 30 candidates were shortlisted for interview and in that context the probability of promotion must be viewed. The rationale for my award is to base compensation at the lower range having regard to the effects of discrimination acts and being mindful of the maximum award of 104 weeks and the circumstances where that might apply. However, the legislation does set out three options:

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c ) or (1)(f ) shall be —

( a ) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —(i), (ii), (iii),

Based on the effects of discrimination on the age ground being related to a loss of opportunity to compete at interview I award the complainant 26 weeks of her remuneration. As 26 weeks of her remuneration is less than option (iii), I order the respondent to pay compensation to the complainant of €40,000 for the effects of acts of discrimination on the age ground.

Having regard to the facts as detailed by the complainant and the presumption of discrimination raised and where the respondent has not demonstrated how an objective and transparent process was applied when shortlisting to rebut that presumption, I order the respondent to adopt the  recommendations set out in the Commission for Public Appointments Case Book 2017 relating to the best practices as set out at section D relating to Shortlisting concerning meaningful feedback and also adopt the use of a marking scheme when shortlisting candidates.

Decision: I find that the respondent has discriminated against the complainant on the ground of age, contrary to the provisions of section 8 of the Employment Equality Act, 1998 arising from unintended indirect discrimination. I order that respondent to pay the complainant the sum of €40,000 in compensation for the consequences of discrimination and that the respondent adopts the shortlisting recommendations as detailed in the Commission Casebook of 2017:

Regardless of which category a candidate falls into, the CPSA considers that they deserve to have their application properly evaluated, as they have gone to the time and trouble of preparing and submitting it. Clear and meaningful feedback should be available to all candidates that shows how their application was evaluated by the board and which criteria they did not demonstrate to the same standard as those candidates invited to the next stage of the appointment process. The Commission expects Recruiting Organisations to explain the decision reached, but does not require them to provide career development advice to unsuccessful candidates

6. Marking scheme

The Commission accepts that it can be challenging to apply precise empirical measures when evaluating a candidate’s written application. However, it considers that the use of a marking scheme can be helpful in showing candidates how their application was evaluated by the selection board. Use of a marking scheme may also encourage selection boards to apply a high level of discipline and rigour to their evaluation of candidates

 Internal Promotion  - Indirect Discrimination-Shortlisting