Complainant

Respondent

Parties

David  Mc Myler

Department of Transport

Representatives

Carol Jarrett, Capella Consulting Ltd.

Elizabeth Donovan BL instructed by Aoife Burke Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00033439-001

30/12/2019

The complainant asserts that he was discriminated against on the age ground during a promotion competition in 2019; the respondent denies the claim.

At the time of the application, the complainant had 39 years of service in the Irish Coastguard and previously in the Irish Naval Service. He was the incident manager for all major incidents in his field between 2001 and 2017. He has 26 qualifications from Ireland, the EU and the US. He led EU-wide and international maritime initiatives and was nominated for the Taoiseach’s award in 2014.

The complainant gave evidence under affirmation and was cross-examined. He outlined that he had already been doing the tasks of the Manager role when he applied for promotion in 2019. He challenged the design and implementation of the promotion process, stating that both were discriminatory on the age ground.

I took a comprehensive note of the complainant’s submissions and evidence, and this is recited as required in each of the findings made below.

The respondent denied that there had been discrimination on grounds of age and submitted that the complainant had not raised an inference of discrimination. The Head of HR gave evidence under affirmation, setting out her role in the process as well as her conversation with the interview notetaker.

I took a comprehensive note of the respondent’s submissions and evidence, and this is recited as required in each of the findings made below.

The complainant has a long track record of achievement in maritime matters, in particular in ensuring Ireland’s preparedness in the event of ship casualty or marine pollution. The complainant was an Operations and Training Officer, a warranted role at Assistant Principal grade. As scored by the then acting Director and member of the interview panel, the complainant was deemed to ‘always’ exhibit and have an ‘excellent ability’ as a ‘confident, clear, fluid communicator’.

This complaint arises from a promotion process in 2019 and an interview held on the 1st July 2019 for the role of ‘IRCG Manager’, an Assistant Principal Officer Higher equivalent.  While the complainant was shortlisted for the role, he was unsuccessful at interview. The complainant asserts that this was due to age discrimination both in the design and implementation of the competition. The respondent denies the claim of discrimination.

Legal framework

Section 85A of the Employment Equality Act and Article 10 of the underlying Framework Directive (2000/78/EC) require that a complainant establish facts of such significance that raise the inference or presumption of discrimination.

In line with the well-established Labour Court authorities of Mitchell v Southern Health Board [2001] ELR 201 and Valpeters v Melbury Developments [2010] ELR 64, what constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of the respondent, then the inference or presumption is quickly raised; it falls on the respondent to show that there was no breach of the principle of equal treatment. A complainant’s ‘mere assertions’ will not raise an inference of discrimination where there are relevant facts which the complainant can be expected to ascertain. 

As held by the Labour Court in Moore Walsh v Waterford Institute of Technology EDA042, ‘in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merit of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.’

In respect of age discrimination, the Labour Court held in Moate Community School v Moriarty EDA0718: ‘Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.”

The complainant also asserts indirect discrimination on the age ground. The Employment Equality Act provides that indirect discrimination on the age ground ‘occurs where an apparently neutral provision would put persons of an age at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer… the employer shall be treated for the purposes of this Act as discriminating against [the person]… unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’ ‘Provision’ is defined as ‘a term in a contract of employment or a requirement, criterion, practice, regime, policy or condition relating to employment’.

In a gender discrimination case Nathan v Bailey Gibson [1996] ELR 114, the Supreme Court held ‘In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.’

The Supreme Court held that the onus on the claimant in indirect discrimination was to show that the practice bore significantly more heavily on them, for example, on the gender ground. Nathan v Bailey Gibson was relied on by the Labour Court in NBK Designs Ltd v Inoue EED0212 and much of the subsequent case law.

Design of the promotion competition

The complainant asserted that the design of the promotion competition was directly or indirectly discriminatory on the age ground. He said that the process did not correctly assess his qualifications and experience, and a less qualified and experienced candidate was successful. During cross-examination, the complainant was clear that he was not seeking a return to promotion on seniority but that he wanted his skill set to be judged per the rules of the competition.

As part of the complaint of age discrimination, the complainant outlined that not being able to submit a CV undermined his ability to demonstrate his qualifications and experience. He stated that the essential requirements were too broad and broader than the essential requirements in a Surveyor role also filled in 2019. He submitted that the process did not allow his qualifications and experience to be scored and he would have obtained the highest score if this had happened.

In reply, the respondent outlined that this was a new Manager role and it had obtained sanction to increase staff numbers and to establish new managerial roles. It explained that it had followed DEPR guidelines in devising the process and criteria. This was an open competition, unlike the Surveyor role which was confined. This was not an atypical competition. It outlined that the competency framework is well established, and that the complainant was able to set out his qualifications and experience in the application.

Having considered the oral and documentary evidence, I find that no element of the design or structure of the promotion competition raises an inference of age discrimination. I accept that this was an open promotion competition at a senior level. The essential requirements were appropriate to the role and allowed experienced and qualified candidates to present an application. The complainant was able to set out his experience and qualifications in his application, irrespective of whether or not he submitted a CV.

Shortlisting and composition of the interview panel

It is significant that the complainant was one of the three candidates shortlisted; three others were not. It is also a factor that the Director who later sat on the interview panel gave the complainant a very positive appraisal in the relevant part of the application.

The complainant raises three issues regarding the constitution of the interview panel. The first is the participation of the Director in the process, stating that there was a conflict of interest. The second is the qualification of the three panel members. The third was an existing familiarity or relationship between another candidate and the UK-based panel member.

I can see why the complainant had a concern about the appropriateness of the Director sitting on the interview panel, given the events that occurred in 2017. I note that the PAS review made recommendations regarding the need to document potential conflicts of interest. This could contribute to the raising of an inference of discrimination, but on its own, it is not a fact of such significance.

I find that the interview panel was suitably qualified, and the choice of the UK-based panel member was appropriate, even if he was not at the Principal Officer level. This panel member had technical expertise and came from outside of the agency and the Department. His familiarity with another candidate was too incidental to raise an inference of discrimination.

The interview

The complainant attended the interview on the 1st July 2019. The complainant scored 45 in ‘Leadership’, 30 in ‘Analysis and Decision making’, 55 in ‘Management and Delivery of results’, 40 in ‘Interpersonal and Communication skills’ and 40 in ‘Drive and Commitment’, totalling 210. 50 was the pass mark in each competency. The feedback provided was ‘Candidate did not demonstrate depth and breadth of examples required. Would benefit from more focused responses to direct questions’.

In respect of the interview itself, the complainant outlined that the first question was discriminatory. He said that he was interrupted by the panel and not able to develop his answers because of aggressive questioning. 

No member of the interview panel gave evidence at the adjudication. The interview notes were taken by a notetaker and there were no separate interview notes from each panel member. The absence of individual notes does not raise an inference of discrimination. The notes are comprehensive and record an outline of the questions and answers. Apart from the five marks and the short feedback set out above, there is no other evaluation of the complainant’s answers.

The complainant asserted that in the absence of contradictory direct evidence from the panel members, I had to accept the complainant’s evidence as the correct account of the interview. I agree that evidence which is coherent and not contradicted by opposing direct evidence should be accepted as fact. I am also able to assess the evidence according to the complainant’s own recital of his interview answers. At the end of the adjudication, the complainant recited his answer in the Analysis and Decision-making competency, which, as pointed out by the Head of HR and I think accepted by the complainant, indicated a lack of focus in the presentation of examples.

The complainant asserts that the first question was discriminatory. The question was what motivated you to apply for the role. The complainant perceived this as him having to justify his seeking promotion at his age. He answers by giving his age and saying that he was the oldest candidate. The complainant accepted that this was defensive, but he felt that he had to justify making an application at this stage in his career. It was put to the complainant in cross-examination that the rest of his answer was strong, and I agree that the complainant was able to set out his qualifications and experience. The first question was an open question to ease the interviewee into the interview. The open reference to ‘motivation’ can in no way be seen as requiring someone to justify their application because of their age. The question does not raise an inference of discrimination.

The complainant set out that he was frequently interrupted with aggressive questions at the start of the interview, and this had ceased by the end of the 50-minute interview. The PAS review held that it could not determine whether the questions were aggressive but held that there was insufficient evidence of a breach of the PAS Code of Practice Appointments to Positions in the Civil Service and Public Service 2017.

In the feedback session between the interview Chair and the complainant, the interview chair said that the interruptions were a ‘legitimate tactic’ so that the complainant would give focused answers. I am satisfied that there were interruptions and that they made the complainant discernibly uncomfortable. I cannot say that there were aggressive, but I accept that they felt aggressive to the complainant. I also accept that the answers lacked focus (as I was able to observe) and that this was the motivation for the interventions. As submitted by the respondent, the complainant scored best in a competency in which there were interruptions (Management & Delivery of Results). The interruptions did not occur in the latter competencies. I find that the interruptions occurred in order to garner more focused answers to the interview questions and do not, therefore, raise an inference of discrimination.

The successful candidate was aged 38 and was also experienced and qualified for the role, albeit only received his Masters qualification at the end of the promotion process. No inference of discrimination can be made from the appointment of such a strong candidate.

I can appreciate why the complainant was devastated by the ‘unqualified’ finding of the interview panel, given his years of work for the respondent and in other maritime roles. The Head of HR explained that this meant that the complainant had not met the qualifying mark based on the evidence he supplied during the interview and was not a reference to his current role. Not being deemed to be qualified meant that the complainant was not considered for acting up roles that followed, including in this Manager post. The complainant referred to other examples where candidates had not met the pass mark but were included on the panel. While it may be the case that these other candidates scored less than the pass mark in a single competency, as opposed to the four in this instance, there is a lack of transparency as to why the complainant was deemed unqualified. It is not stated that any competency scored under 50 would result in such an outcome or whether it was the number of scores below 50. While there is a lack of transparency with ‘downstream’ consequences albeit until the next competition, this is unrelated to age and an inference of discrimination cannot be drawn from it.   

For the above reasons, I find that the complainant has not established a prima facie case of discrimination and was, therefore, not discriminated against on grounds of age.

Indirect discrimination

For completeness, I find that neither the design nor the implementation of the promotion competition placed the complainant at a particular disadvantage to ground a claim of indirect discrimination. He was able to set out his qualifications and experiences in the competency-based process and they were assessed accordingly.

CA-00033439-001

I decide that the complainant has not established a prima facie case of either direct or indirect discrimination on grounds of age.

Employment Equality Act / age / discrimination