Complainant

Respondent

Parties

Desmond Furlong

Department of Transport

Representatives

Self-represented 

William Maher BL instructed by the Chief States 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 - 2021

CA-00031874-001

29/10/2019

The complainant asserts that there was discrimination on grounds of age and gender in the shortlisting of applicants in a promotion competition in the civil service. The respondent denies the claim.

The complainant outlined that in June 2019 he applied for promotion to the post of Assistant Principal Officer. Over his career, he was successful in both internal and external PAS (Public Appointments Service) competitions. In this instance, he was not shortlisted and only received limited feedback. He was dissatisfied with the one line of explanation provided to him. He took it as meaning that he needed to provide more recent examples. The explanation refers to ‘recent’ and not ‘strong’ or another word, so this triggered a red light for him.

The complainant said that he had initially requested an informal review, which concluded that the board had acted correctly and that he was unsuccessful relative to others. The complainant then tried to make a formal complaint. He outlined that there was a delay in providing the information about the age of candidates despite his union and another candidate looking for this.

The complainant submitted that the respondent was responsible for running a competition that was free from discrimination so they should have had the information about the age of the candidates.

The complainant submitted that the gender statistics were compelling as 66% of female candidates were shortlisted while only 33% of the males were. He said that this difference was significant. He said that the civil service renewal policy has a stated aim to increase the number of females at senior level.

The complainant outlined that under the ‘leadership’ competency, he gave the example of his secondment to another Department to establish the first overseas visa office. He and two Executive Officers managed the office for four years. The complainant said that this was a big success and that there were now six overseas visa offices, processing 65% of all visa applications. The complainant said that he had used this example before and had used it since. In the ‘analysis and decision making’ competency, the complainant referred to deciding appeals of visa applications. For ‘management & delivery of results’, the complainant gave practical examples of making savings for the Department.

The complainant outlined that he left the respondent Department in September 2020 and was promoted to Assistant Principal in July 2021. He outlined that he had used the exact same examples in this latter application.

The complainant outlined that he was seeking an acknowledgement from the respondent Department that it was wrong and that he had been mistreated. The complainant had the expectation of at least being shortlisted. He would have been financially better off had he been promoted earlier.

In cross-examination, the complainant was asked about his reference in submissions to the possibility of there being a maximum number of candidates to be shortlisted and his allegation of a preference shown to younger and female candidates; the complainant replied that he was not in the room and could not comment as to their intention. He outlined that there was definite indirect discrimination and maintained that it could be direct discrimination. It was put to the complainant that this would be strongly challenged in the evidence. The complainant replied that the outcome was that 66% of female candidates were shortlisted and that is all he has got. He outlined that he did not think that the people who did the shortlisting were bad people but that they had got it wrong.

The complainant outlined that the question was how the 10 oldest candidates fared against the 10 youngest candidates and this showed that the oldest group did poorest. It was put to the complainant that there was no significant difference in the data between age groups and there was an equivalent distribution across the groups; he replied that this was how the respondent had chosen to present the figures.

It was put to the complainant that there was no significant difference between how the age groups were treated; he replied that 33% of the over 50s were shortlisted when compared to higher than 50% of the general group. It was put to the complainant that his submission that younger candidates not having sufficient experience was ageist; he replied that it was not outlandish to say that someone with 20 or 30 years of management experience should score highly in a competition.

The complainant accepted that administrative officers would be younger as they entered as graduates. It was put to the complainant that administrative officers had obtained their role on merit, and these were also management positions; he replied that someone with 20 or 30 years of experience should be expected to do better than someone with less experience. The complainant accepted that an administrative officer could come first in the competition, but in a competitive process, candidates with more experience should be expected to have done better. He said that it was reasonable to expect qualified, experienced candidates to perform better than people with less experience.

The complainant referred to the 2017 press statement regarding a 50/50 gender balance in the civil service. It was put to the complainant that he was saying that there was a policy to positively discriminate and that it was applied in this selection process; he replied that he was not in the room but could see the outcome that women did better. 

It was put to the complainant that his reference to 66/33 was a mere assertion and was asked whether he could point to any policy in this regard; the complainant replied that all he had to go on was the outcome that females had done so well. It was put to the complainant that more women being shortlisted did not demonstrate discrimination. The complainant was asked whether he accepted that there had been no quota on the maximum number of candidates to be interviewed; he replied that he wanted clarity why they shortlisted at all, and everyone could have been interviewed. He asked what the purpose of shortlisting was when there were only 38 candidates.

It was put to the complainant that Staff Notice 7/2019 referred to shortlisting; he replied that the first line of the relevant part states that shortlisting is used to decide the number of candidates to be called for interview. He said that its purpose was to make the process more manageable. It was put to the complainant that this extract did not suggest that there was a quota or limit on the number of candidates going forward and that it has happened that 100% of applicants proceeded to interview. The complainant acknowledged this and said that he had been in that situation before. He expressed surprise that all candidates in this competition were not interviewed.

The complainant outlined that shortlisting should have been done on the whole application and not just the competencies. He had given recent examples in the general application form, and they should have been taken into account. He said that he was very familiar with the competency framework for the Assistant Principal grade. It was put to the complainant that he had left blank space in the ‘Key Achievements’ part of the application form. It was put to the complainant that he had continued with the same example in ‘Analysis & Decision making’ from ‘Leadership’ so it would be entirely obvious that this related to the same time period. The complainant agreed that his ‘Analysis & Decision making’ example also dealt with his Moscow experience, and it had been the adjudication officer who had raised the comparison between the two examples.

In respect of the feedback form, the complainant said that he the words ‘as much as he could have’ meant that recent examples would have been preferable. He had not realised that asking for an informal review precluded him from availing of a formal review under section 8. He had read the CPSA Code. He had raised his concern informally and had not requested a section 7 review, so should have been allowed avail of the section 8 review. The complainant accepted that he had not wanted a formal review under section 7 and had embarked on the informal review.

It was put to the complainant that the HR Manager had agreed to provide the statistical information and there was a delay in providing this. The complainant said that he found it remarkable that it took so long to get the information. He said that the delay raised suspicion. He said that there were tight deadlines in the review process, so he needed the information, for example the number shortlisted. He accepted that the age claim was not that compelling, and he emphasised the fact that 66% of female candidates were shortlisted, while only 33% of males were. He said that on the balance of probabilities, this disclosed discrimination. He did not accept that there was no direct discrimination.

In closing comments, the complainant said that the feedback illustrated that old examples were not treated the same as new ones and that this was borne out by the evidence. He said that the interview board had effectively created new criteria when candidates were expected to use examples from their entire career.

The respondent submitted that the competition process was properly conducted, and the shortlisting was done in accordance with the Code. There was no limit on the number of candidates who could be shortlisted. It was submitted that the feedback given had been subjective comment. The respondent outlined that there was no policy of positive discrimination in favour of one gender although the policy was to encourage women. There had been delay in providing the information relating to age.

Evidence of Ethna Brogan

Ms Brogan gave an overview of her roles in the Department, which included being Head of Corporate Services and head of HR. Ms Brogan outlined that the department had organised many competitions after 2015/2016. The Department was required to comply with the Codes of Practice of the Public Appointments Service. The Department recruited through PAS for internal competitions and mobility across the civil service.

Ms Brogan outlined that the respondent retained the right to shortlist candidates in a process. She outlined that shortlisting was a means of ensuring that only those who met the criteria were brought forward for interview. It was a matter for the board to decide the number of candidates to interview. The department used shortlisting depending on the number of applicants and the quality of the applications. In Ms Brogan’s experience, 47% was the lowest percentage shortlisted and sometimes up to 100% were brought to interview. This was a matter for the interview board.

Ms Brogan outlined that there was no gender quota in the Civil Service Renewal Plan. They generally used the same panel for both shortlisting and interviewing candidates in a competition. The respondent ensured gender balance on a panel, which would consist of two internal members of a grade higher than the advertised grade as well as an external HR consultant. The respondent ensured a spread of Principal Officers from across the respondent so that Principal Officers did not serve on too many panels. This avoided a candidate being interviewed by Principal Officers who had previously interviewed them. The respondent provided training in carrying out competency-based interviews delivered by external trainers and Mr Burke and Mr Gallagher had both received training.

Ms Brogan said that she did not accept that the explanation given represented an additional framework to the competency framework, which has been in use for some time and is intended to allow candidates convey how they meet the competencies. Ms Brogan outlined that if an applicant used an example from the start of their career, she would expect that they also show that they continue to demonstrate this competency.

Ms Brogan said that the complainant was not provided with the age information at an early stage, and it apologised for this. It was provided at the time the union first requested it. Ms Brogan outlined that there was a good representative profile of candidates by age. She commented that administrative officers tend to be younger but there are many new entrants of all ages. She said that 16 HEOs and 4 AOs were shortlisted in this case. 

In respect of the 66/33 figure, Ms Brogan said that flexibilities had been introduced to encourage applications from females, for example a shorter working year. This was the intention of the Renewal Policy and there were no quotas. The respondent was committed to ensuring that all competitions were carried out in accordance with the CPSA Codes and that all candidates have equality of opportunity.

In cross-examination, Ms Brogan outlined that the shortlisting was done in one day. She outlined that the panel were supplied with the applications one week before the shortlisting day. She was asked when the outcome was a 66/33 split, how was the process quality controlled to ensure equality; she replied that there was a HR representative on the panel and the secretary who was also trained. She said that she might check with the secretary of the board that applications were assessed on their merits if there was a huge disparity. The shortlisting guidelines asked panel members to have regard to equality and a panel was expected to have regard to the shortlisting guidelines. Ms Brogan said that there were 15 male applicants and 23 female applicants, so the 33/66 figure should be seen in this context.

Evidence of Joanna Cullen

Ms Cullen outlined that she is a Principal Officer and the current Department Personnel Officer. She joined the Public Appointments Service in 2007 and had overseen a large volume of competitions, including for senior executive roles.

Ms Cullen said that there was no number to be shortlisted and no gender quota. She was not surprised by the 66/33 split and given that the total number of candidates was 38, this was not statistically significant. She outlined that there was no bias in the process.

Ms Cullen said that she had developed an aide memoir to train interview panels. When meeting a panel, she would read out the principles underpinning the process and also bring a copy of the Code. She was especially careful in internal competitions that applications be judged on their contents alone. She emphasised that panel members cannot bring in information outside the actual application as this undermined the process. Ms Cullen outlined that she would list the nine grounds of discrimination. She outlined that unconscious bias is part of being human so advised the panel to guard against that.

Ms Cullen said that she had carried out the section 7 informal review. She acknowledged the need to process the request quickly to ensure that the candidate could re-enter the competition, should the review be successful. She first checked for accuracy to ensure that the correct decision was issued. She then looked at whether there was consistency. She looked at the examples provided in the context of the competencies and in respect of the other candidates. In this case, she found no reason to overturn the decision and that it was fair and reasonable. Ms Cullen said that the handwritten explanation in the feedback was a fair assessment, given the candidate pool and the competencies. She said that the process was to give candidates the opportunity to give their best examples.

Ms Cullen said that the complainant had used an old example in ‘interpersonal skills’ [the university role] and he was held to have shown sufficient experience to meet the competency.

In cross-examination, Ms Cullen said that a briefing would normally take about 30 minutes. She said that it was appropriate that she carry out the informal review as an external person was recommended for a formal review. It was put to Ms Cullen that she had not stated in the email that there was no limit to the number that could be shortlisted; she replied that the complainant had raised this in a later email to the Secretary General, so she had not addressed this beforehand. She had never been involved in a competition where there was a maximum number to be shortlisted. The aim of shortlisting was to select those candidates whose applications best met the competencies.

It was put to Ms Cullen that she had referred to the quality of other candidates, so this pointed to there being relativity; she replied that this was a competition and candidates were ranked on an order of merit according to criteria. She said that the purpose was to identify the candidates whose applications best met the competencies.

It was put to Ms Cullen that shortlisting was a black or white exercise, a candidate was shortlisted or not; she replied that the purpose of shortlisting was to compare the application against the competencies and here there was divergence among the applications and there was a group of stronger applications. Shortlisting identified those candidates most likely to succeed. She said that it would be a disparity if all the candidates shortlisted were of one gender, but if the process is robust, that is the process. She said that she was not surprised by the reference to ‘recent’ and ‘as much as he could have’ in the feedback form. She outlined that there were potentially other examples for the complainant to draw from to show the currency of the competency. She said that an example is not necessarily diluted because it is old, and it was useful to refer to a breadth of experience. She said that the interview board had the complainant’s full application, so it would have been clear that the ‘analysis & decision making’ example was from 2002 to 2006. She outlined that her review looked at the decision of the interview board and whether it was correct and fair.

Evidence of Eddie Burke

Mr Burke outlined that he is in the civil service for 40 years, joining the respondent department in 1994. He has been a Principal Officer for 11 years. He had completed a full course in competency interviewing in 2013 and refresher training since then. In this competition, they received the 38 applications and went through them individually. They decided to group them into three groups: 1 to go forward, 2 ‘no’ and 3 maybe. They discussed the applications and put them into their bundles and put aside those that they did not agree. They had a more detailed discussion on the maybes and took decisions by consensus.

Mr Burke said that age and gender never came into their decision making. They focussed on identifying the candidates that had met the criteria to go forward. He said that it was abhorrent that someone would allege that criteria other than competencies would be used in selection.

In respect of the complainant’s application, Mr Burke said that the first three examples were dated and the final two had greater depth and breadth. They had to be satisfied that the applicants met the criteria and could do the job. They did not have a basis for this confidence here as the examples were old. It was for candidates to put their best foot forward and a reliance on old examples did not give confidence. Mr Burke was asked when 66/33 split came to light at the end of the shortlisting what did they do; he replied that they had monitored the outcome. There was a small margin, so if one switched three candidates the numbers would have flipped. They had challenged each other to ensure that there was a robust assessment. Mr Burke said that he had worked his way through the civil service and Mr Gallagher was highly qualified. He said that the candidates placed on the panel were representative and this indicated their absence of bias.

Mr Burke said that they had needed confidence of the candidate demonstrating the competencies currently. The complainant had done this in the last two examples, where he demonstrated a depth of experience and brought this up to date. In respect of the ‘2’ for ‘analysis & decision making’, he knew that this example was from 2002 but the complainant had already been knocked in the two other competencies by using the dated examples. He outlined that the Moscow examples were dated and used over two answers. He said that they were good examples but dated. He had initially listed the complainant as a ‘maybe’. Mr Burke congratulated the complainant on since being promoted to Assistant Principal.

Evidence of Ronan Gallagher

Mr Gallagher outlined that he joined the civil service in 2000, transferring to the respondent Department in 2017. He outlined that they would have done whatever number of interviews were required and there was no limit on the applicants shortlisted. He could not recall what his initial stance had been in relation to the complainant’s application. He took his time to evaluate the applications and to pick the best candidates. He looked for evidence of repeated high performance. The feedback was an indication of what the applicant needed to address. Using one example in two competencies was always a risk.

Closing submissions

In closing, the respondent referred to the burden of proof set out in section 85A and the dicta from Mitchell v Southern Health Board [2001] ELR 201 as well as A Claimant v An Garda Siochana (DEC-2014-079). The facts must be sufficient to raise an inference of discrimination.

In relation to whether the facts in this case raised such an inference, the complainant had said that his age case was not compelling and administrative officers were not favoured. The complainant relied on assertions. While the complainant had emphasised the 66/33 split on gender grounds, but this had to be considered in its context. 60% of the applicants had been women so it was not surprising that more female candidates were shortlisted. The sample size was small, and it would only take three to reverse the ratio.

Referring to O’Hallaron v Galway City Partnership EDA 077, the respondent submitted that it was not the Labour Court’s role to decide the appropriateness of criteria, just whether they were applied consistently. It was submitted that one example might better support one competency but not the other. This did not itself raise an inference of discrimination, even if different weightings were given to the same example. It was submitted that the feedback spoke to the application in a subjective way and did not create new criteria.

It was submitted that Moore Walsh v Waterford Institute of Technology EDA 042 was authority that clear evidence of unfairness or manifest irrationality was required. It was submitted that the complainant’s case was premised on mere assertions. The respondent did not accept that there was an attempt to create additional criteria and the competition notice had asked for examples of each competency in the candidate’s career to date.

This is a complaint pursuant to the Employment Equality Act on grounds of gender and age. It arises from an internal competition for promotion to the Assistant Principal grade. The complainant asserts that the shortlisting process was not free from discrimination; an assertion disputed by the respondent. The complainant has since been promoted to this grade in another Department.

The complainant began in the civil service on the 15th August 1983 and was promoted to Higher Executive Officer on the 7th July 1992. He obtained 16 qualifications over his career, including in French and Russian. The application sets out that the complainant worked in nine posts, including as the Head of the Visa Office in Moscow. He also acted up in the Assistant Principal grade in the respondent Department in 2017/18.

Criteria applied to shortlisting

Staff notice 7/2019 gave details of the internal competition for promotion to Assistant Principal. It provided that one post would be filled and there would be a maximum panel of 6. The Staff Notice provided ‘Candidates should have all the attributes required of an Assistant Principal Officer and, in particular, must demonstrate, by reference to specific achievements in their career to date etc, that they possess the qualities, skills and knowledge required for the role of Assistant Principal Officer as identified by the Public Appointments Service (PAS) in its Assistant Principal competency framework, see Appendix A.’

The ‘Key Achievements’ section of the application form asks the following of the applicant: ‘Using the five headings below and spaces provided for each of the headings, please demonstrate, using specific examples of your personal achievements from your career to date that you possess the qualities, skills and attributes required for the role of Assistant Principal officer. Your examples should show how you have contributed to the overall goals and objects of your Division/Region. Please set out your response in summary format. These examples can then be discussed in more detail at interview as required.’ There is no reference to when the examples should date from. Nor is the applicant cautioned to ensure that recent examples are included in each answer.

The ‘Shortlisting Guidelines’ state that ‘for an application to gain a high mark, it would be expected that the application would provide the following:

·       All the examples put forward by the candidate are at an appropriate level;

·       Evidence of personal contribution in the examples provided;

·       Evidence of sufficient breadth and depth of experience;

·       Examples demonstrate evidence of many of the indicators of effective performance highlighted in the competency descriptions;

·       Demonstrates an understand of the challenges facing the applicant in the role.’

The burden of proof in anti-discrimination law

Section 85A provides that ‘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.’

Section 85A was inserted to the Employment Equality Act by the Equality Act 2004 to give effect to the burden of proof promulgated in EU law.

As set out by the Labour Court in Southern Health Board v Mitchell [2001] ELR 201, this burden of proof requires the complainant to set out facts of such significance that raise a presumption of discrimination. In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court referred to the complainant establishing facts from which discrimination may be inferred and that ‘mere assertions unsupported by evidence’ cannot be elevated to allow an inference of discrimination to be drawn.

A claimant in an equality claim has three questions to address. The first is whether they fall within the purview of a discriminatory ground albeit this could be something that exists, existed in the past, exist in the future or be imputed to them or also, they have an association with the ground. The second is that they incurred less favourable treatment (in direct discrimination). The third is that the less favourable treatment was ‘on grounds of’ the discriminatory ground.

Section 85A and whether a claimant has raised a prima facie case of discrimination relates to the third question: that the less favourable treatment was on grounds of the discriminatory ground. The first two questions are decided on a balance of probabilities, i.e. whether something is more likely than not. The third, whether treatment was ‘on grounds of’, is subject to a burden of proof that is less onerous and easier for a claimant to meet.

Nothing in the statute or in Mitchell and Valpeters makes this an onerous test. What those cases mean is that the claimant must go some way along the line of showing that the less favourable treatment was ‘on grounds of’ the membership or association with a ground covered by the Act. The point of the burden of proof in section 85A is that the claimant does not have to go as far along the line as a plaintiff in seeking to prove causation on the balance of probabilities in a civil claim.

The reasons for this are very clearly explained in the case law and set out with great clarity in ‘Reversing the burden of proof: Practical dilemmas at the European and national level’ Farkas and O’Farrell, European Commission Thematic Report, 2014. Akin to the ‘peculiar knowledge’ principle, discrimination is rarely overt and the discriminatory reason for any action, arising, for example, from a bias or stereotype, will rarely be discernible to a claimant. The point of the burden of proof in anti-discrimination law is that a claimant is unlikely to be able to prove causation on a balance of probabilities, and the effect of section 85A etc is that they do not have to.

Note that this relates to the general application of the burden of proof in employment equality claims, but a claimant who is pregnant and dismissed from their employment establishes a prima facie case of discrimination simply by being pregnant and being dismissed; it falls on the employer to show that pregnancy was not a factor in the dismissal.

Note also that the equality Acts allow inferences to be drawn from the failure of a respondent to provide ‘material information’ sought via section 76 of the Employment Equality Act or section 21(2)(b) of the Equal Status Act. ‘Material information’ includes reasons for any act or omission, relevant practices or procedures and information about comparators.  

The question of what constitutes a ‘fact of such significance’ that raises a presumption or inference of discrimination is very much determined by the facts of the case. As set out in the case law, there is no closed category of fact that can lead to a presumption of discrimination (Valpeters).

What determines whether a fact is of ‘such significance’ will depend on what information the claimant can be expected to have to hand and what information is within the exclusive or near-exclusive knowledge of the respondent.

In Mitchell, the claimant already had the information to hand regarding her qualifications and those of the other candidates. While the claimant said that this information raised the presumption of discrimination, the Labour Court, however, did not agree that the claimant’s qualifications were superior to those of the other candidates. While the Labour Court criticised there being an all-male interview panel, this was not sufficient to raise a presumption of discrimination. The Court held that the claimant had not established facts that raised an inference of discrimination.

The questions in Valpeters were whether the claimant was subject to less favourable treatment on grounds of him not being Irish in being designated as an independent contractor (and not as an employee) and his subsequent dismissal. The employer did not attend the hearing. The Labour Court held that the claimant had not provided evidence that this treatment was ‘on grounds of’ and his section 76 questionnaire did not ask about the claimant being designated as an independent contractor. The Labour Court held that how the employer treated other workers was not within the exclusive knowledge of the employer and could have been ascertained by the claimant. As stated in the oft-quoted part of this determination, mere speculation or assertions, unsupported by evidence could not be elevated to a factual basis upon which an inference of discrimination can be drawn. It should be borne in mind that this dicta arose in a context of where knowledge pertaining to discrimination was not in the exclusive or near-exclusive purview of the respondent.

Valpeters and Mitchell are clear that what amounts in any particular case as a fact of such significance that raises an inference of discrimination must take account of three factors. The first factor is whether the relevant facts are within the exclusive or near exclusive knowledge of the respondent (in such case, the burden quickly shifts to the respondent as they have the means of knowledge to dislodge, or not, the inference of discrimination). The second factor is what evidence and information the claimant can be expected to ascertain, for example how others were treated. The third factor is what response the respondent gave to questions seeking ‘material information’ posed by the complainant of the respondent per section 76 of the Employment Equality Act. This allows for inferences to be drawn from a failure to respond or from a response which is ‘misleading or equivocal’ (Valpeters).

It should also be noted that even where the claimant has raised a presumption or inference of discrimination, it is open for the respondent to show that there was no discrimination. Where this occurs, the determination is that the respondent did not discriminate against the claimant. The fact that the claimant has established a prima facie case of discrimination is not a finding of discrimination. There is only a finding of discrimination where the respondent fails to rebut the inference or presumption of discrimination.

The next question is whether the complainant has raised the presumption or inference of discrimination. As the complainant aptly put it in evidence, he was not in the room when the relevant shortlisting decisions were made. It follows that this is a case where the relevant information was within the exclusive or near-exclusive knowledge of the respondent.

Consideration of the complainant’s application

In his application for this promotion competition, the complainant addressed the ‘Leadership’ competency by setting out his achievements in establishing and heading the Visa Office in the Irish embassy to the Russian Federation. This dated from 2002 to 2006. In ‘Management & delivery of results’, the complainant addressed examples dating from 2008 to 2016.

In the shortlisting assessment, the panel held that the complainant’s application had not demonstrated sufficient evidence in the ‘leadership’ and ‘management and delivery of results’ competencies. He was held to have demonstrated sufficient evidence in ‘analysis & decision-making’, ‘interpersonal & communication skills’ and ‘specialist knowledge, expertise and self development’. The overall comment was ‘Didn’t use recent examples of experience in providing evidence of competencies as much as he could have.’

It is not entirely clear why the same examples could be deemed acceptable in one competency (‘Analysis and decision-making’) while not acceptable in another (‘Leadership’). This is especially the case as the Moscow example was not deemed acceptable as it was from too long ago; surely, it should be from too long ago for all competencies. While this is an incongruity, it is not a fact of such significance that raises an inference of discrimination.

The complainant outlined that the panel had created a new criterion to assess applications, i.e. that the examples given must be recent. The respondent outlined that this was captured by the requirement to have examples that showed the ‘breadth’ of experience. Whether or not the panel went so far as creating a new criterion, it is fair to say that they emphasised the importance of citing recent examples of each competency. I note that the word ‘recent’ is not used in the Staff Notice or the Shortlisting Guidelines. The applicant was not warned that a recent example had to be cited in each competency.

I accept that the respondent witnesses explained the rationale for seeking recent examples, for example that the applicant can show currency in demonstrating a competency. Even if captured by the need to demonstrate ‘breadth’, I note that this was only one of the elements sought, for example their ‘appropriate level’, the applicant’s ‘personal contribution’ and that they demonstrate ‘effective performance’.

Looking at the examples cited by the complainant, it is clear that the ‘leadership’ response was particularly strong. Even if dated from 2002 to 2006, it was a clear example of all the competencies associated with ‘leadership’ in a challenging environment. Given the strength of the example cited, too much weight was placed on when this occurred. It was strong enough to bear the weight of the whole leadership competency. It clearly met the other elements set out in the shortlisting guidelines and it was an account of the complainant’s ‘greatest leadership challenge.’ For it to fall entirely on when it occurred raises an inference of discrimination as this emphasis on one element over the others was not in keeping with the guidelines. This was a decision ‘made in the room’ and therefore entirely within the panel’s knowledge.

The four examples cited in ‘Management & delivery of results’ were from 2008 to 2016. They certainly addressed the competency adequately, including on work completed relatively recently. They certainly ‘demonstrated evidence in respect of the requirements and responsibilities’, i.e. what they ought to have been assessed on. Again, given the emphasis on one element (‘breadth’) over the others and this being a matter in the exclusive knowledge of the panel, it is a matter that raises an inference of discrimination.

Shortlisting outcome

The shortlisting guidelines provide the following in respect of equality: ‘Members of the shortlisting board should be aware of and attentive to the equality profile of the applicant group going forward from shortlisting. All things being equal, a broadly similar profile to that of the applicant stage would be expected.’

There were 38 applicants (15 male and 23 female) and 20 were called to interview (5 male and 15 female). The complainant asserted that this was evidence of gender discrimination.

The respondent provided the following information regarding the age profile of candidates.

The complainant was 53 and 9 months at the time of shortlisting. Dividing the population into two sets rather than the four displayed above and into categories of those 53 and above and 52 and younger indicates that a higher percentage of younger candidates were shortlisted then the group containing the older candidates. Approximately 18 of 32 of the younger group and 2 of 6 of the older group were shortlisted. Approximately 56% of the younger candidates were shortlisted and 33% of the older candidates were. This assumes that the complainant was the only 53 year old applicant, but even if this was not the case, there was disparity on grounds of age. [The re-categorisation of the data follows the approach of the Labour Court in Revenue Commissioners v O’Mahony EDA033].

While the numbers are small and the ratios would shift if, say, more older men were shortlisted, it should be borne in mind that this is statistical analysis of the total population and not a sample of the population.

The above divergences are sufficient to raise an inference of discrimination, to ask the question of whether applicants were preferred on grounds of gender and/or age.

Rebutting the presumption or inference of discrimination

Having established that the complainant has raised a presumption or inference of discrimination, the next step is to consider whether the respondent can rebut this presumption or inference.

It is well-established that the burden of proof in anti-discrimination law was developed because discrimination is rarely overt. It may also not be intentional, for example in the application of a stereotype, even on paternalistic grounds. This burden of proof recognises that the relevant facts may be in the exclusive or near-exclusive knowledge of the respondent. This is why, where an inference or presumption can be drawn, the burden of proof then falls on the respondent to demonstrate that there was no breach of the principle of equal treatment.

Here, I find that the respondent has rebutted the presumption of discrimination because of the strength of the evidence adduced at the hearing. In my view, the complainant should have been shortlisted according to the criteria of the competition. Notwithstanding this, I find that the evidence of the respondent witnesses, for example Ms Brogan and Ms Cullen, demonstrated that there was no discrimination in this regard. The evidence of Mr Gallagher and, in particular, Mr Burke was clear that the panel operated in a way that was free from discrimination. The respondent’s evidence was cogent and convincing. It came from the witnesses who were directly involved in the decision making. While I think that the complainant should have been shortlisted, the fact that he was not was not an act of discrimination. It follows from the above that the respondent has rebutted the inference of discrimination.

CA-00031874-001

I decide that the complainant has established a prima facie case of discrimination and the respondent has discharged the presumption of discrimination. I decide that the complainant was not discriminated against on grounds of either age or gender in not being shortlisted in the promotion competition.

Employment Equality Act / Burden of proof / Promotion / Statistics