Complainant

Respondent

Parties

Ciaran (Kieran)  Walsh

Irish Research Council

Representatives

  N/A

Katherine McVeigh BL instructed by  Eversheds Sutherland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00041545-001

15/12/2020

The Complainant alleged that the Respondent discriminated against him on the grounds of age by refusing to award him the 2020 Government of Ireland post doctoral fellowship following his application.  

The Complainant stated that a Director of the Respondent treated him unfavourably when he rejected an appeal of a decision made by the Respondent to decline his application for a post doctoral fellowship. He stated that in his appeal outcome the Director did not advance any argument in support of his conclusion that the actions of the Respondent were fair and reasonable and instead issued what was in effect a summary judgement. This was despite the Complainant having identified in his appeal letter inaccuracies and bias in the statements of the assessors engaged by the Respondent to evaluate his application. Specifically, the appeal letter submitted on behalf of the Complainant signposted the discriminatory effect of the bias identified, namely a statement made by one of the Assessors that the Complainant’s “potential to acquire competencies that improve the prospects of a further career and a professional position in the long term” was problematic in the context of testimonials that contradicted such a view. Although the Complainant believed that this could be interpreted as a comment on his age as a capacity and career limiting factor and as such discriminatory, he alleged that the Director of the Respondent did not address this point in his appeal outcome. The Complainant stated that the failure by the Director to deal with this specific point meant that he endorsed the decision of the Assessor and in doing so acted unlawfully under the terms of the Equal Status Acts.  

The Respondent stated that they had in place a robust application process for the Post Doctoral Fellowship which included inter alia detailed guidance documents, two independent assessors as well as the specific exclusion of the collection of gender or date of birth of the applicants so that the information wasn’t available to the assessors.

It was also highlighted that there was a three stage appeal process and although the Respondent adhered to the Appeals Policy and Procedures, the Complainant only availed of two of these stages and did not therefore exhaust the process.

The Respondent also asserted that in conducting Stage 2 of the Appeals Process, the Director concerned did not treat the Complainant in a different way to anyone else and highlighted that the Complainant did not present any comparator or demonstrate any evidence to show that he (the Director) had.

The Complainant asserts discrimination in the provision of services in contravention of the Equal Status Act, on the ground of his age.

The Equal Status Act, in its relevant part in relation to discrimination provides at section 3

For the purposes of this Act discrimination shall be taken to occur —

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation F10 [ on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person] referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

3(2) As between any, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:

(f) …that they are of different ages (the “age ground”),

The Complainant is required to establish facts that may give rise to an inference of discrimination (the ‘prima facie’ case) and the burden of proof then shifts to the Respondent to disprove the inference of discrimination. This requires the Complainant to set out, in the first instance, facts upon which he can rely on in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

There are three specific criteria which need to be met to show that a prima facie case has been established, namely:

1. Membership of a discriminatory ground (i.e the age ground) 2. Evidence of specific treatment by the Respondent 3. Evidence that the treatment received by the Complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.

If and when all three of these criteria are met, a prima facie case has been established and the burden of proof shifts to the Respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases, the Complainant does not need to prove that there is a link between the difference and membership of the ground, rather the Respondent must show that there is not.

With regard to 1, 2 and 3 above, in relation to the allegation that he was discriminated against because of his age, I noted in the first instance that there was no comparator nominated by the Complainant. In addition, I noted that there was no evidence presented by him to suggest that the treatment he received in relation to how his appeal was conducted by the Director of the Respondent was less favourable than the treatment received by someone of a different age. I therefore find that he has not established a prima facie case of discrimination.

Given that the Complainant did not establish a prima facie case of discrimination, I find that the Respondent did not engage in prohibited conduct in relation to him.