ADJ-00025212

Adjudication Reference:  ADJ-00025212

Parties:

Complaint(s):

Date of Adjudication Hearing:  19/03/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

This complaint refers to an alleged act of discrimination on the grounds of age of the Complainant, a Secondary School Teacher by the Respondent, a Secondary School, in relation to the appointment of a Caomhnóir (housemaster) and where it is submitted that a younger Teacher was appointed to the position. The position of Caomhnóir is an additional post that involves 4 hours per week for an allowance of €3,300 per annum.

Summary of Complainant’s Case:

The Complainant submitted that they are 60 years of age and a Teacher of long standing at the Respondent’s school.  The Complainant applied for the position of a Caomhnóir, but the appointment was awarded to a younger applicant of 30 years of age.

The Complainant was interviewed for the position by the School Principal, and a representative of the Board of Management.  The Complainant maintained at the interview that he was asked a question which he contended was related to his age and was, therefore, in clear breach of employment equality legislation.

The Complainant submitted that the question he was asked was in view of the stage he had reached in his career; how he would be able to discharge the duties of this job, and a question related to his energy. The Complainant said that he gave a long and detailed answer explaining how physically fit he was, that he was in good health and state of well-being. He maintained that as he gave his response the interviewers did not interject to say that that this was not the question.  On that basis the Complainant contended it is reasonable and fair to assume that the answer he gave was in fact to a question related to his age.  The Complainant also argued that a reference and discussion at the interview about his energy to do the work was age related. What is also significantly relevant to the Complainant is that the other applicant at 30 years of age, who was successful, is considerably younger than the Complainant.

The Complainant was informed some days later by the Principal that he was not to be appointed to the post. The Complainant lodged an appeal at that stage through the agreed grievance procedure. A meeting was held with the Principal where the Complainant was accompanied by a local ASTI school steward. The Complainant contended that at this meeting the Principal stated on two separate occasions that there had been “serious irregularities in the process.” They agreed to adjourn the meeting as the Principal wished to take advice. Some days later they met again where the Complainant maintains that the Principal opined that he had been advised by the Joint Managerial Body to no longer discuss this complaint and the matter was closed. The Complainant maintained that as a consequence of the Principal not being prepared to seek a resolution of the grievance through the Department of Education and the ASTI agreed grievance procedures he was frustrated and could not move to level two of the process.  At this point, the Complainant felt had no other alternative but to lodge a formal complaint with the WRC.

It is the Complainant’s contention that the concept of energy is inextricably linked with age and by being asked this question at an interview , along with being asked about the stage he had reached in his  career  brings in the comparison of age.

Summary of Respondent’s Case:

The Respondent denied it engaged in any act of discrimination against the Complainant. 

In its written submission to the hearing the Respondent contended that in order for a Complainant to succeed in a complaint of discrimination under the Employment Equality Acts 1998-2015, he must be able to demonstrate a nexus between the alleged discriminatory treatment and one or more of the discriminatory grounds. Quoting Section 85A(1) of the Employment Equality Act (the Act) the Respondent advised that the Act sets out the burden of proof which applies in a claim of discrimination as follows: “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.”

On that basis the Respondent argued that a Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. It is only where a complainant succeeds in doing so that the burden of proof shifts to the respondent to prove the contrary. Referring to Labour Court and Melbury v. Vaipeters EDA/0917, the Respondent argued that section 85A, "places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. Again, referring to the Labour Court and the precedent of establishing the primary facts, the Respondent submitted that in Mitchell v Southern Health Board (Cork University Hospital) (AEE/99/8), the Labour Court held that this involves a three-stage test, as follows: (i) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so, he or she cannot succeed. (ii) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination, (iii)If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent. The Respondent therefore argued that the Complainant needs to establish a prima facia case that an act of discrimination had occurred, and with reference to, inter alia, Melbury Developments Ltd v Valpeters [2010] ELR 64, quoted that: “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Regarding the within complaint, and in applying the relevant legal principles to the case, the Respondent argued that the first consideration is whether the question asked of the Complainant at the interview was discriminatory on grounds of age. It is submitted by the Respondent that it was not. The Respondent maintained that the competition was for the post of Caomhnóir, which would involve the successful candidate taking on additional responsibilities and hours of work. It is submitted that it was reasonable to ask a question which explored the Complainant’s ability to take on these additional duties and hours. The Respondent acknowledged that it did refer to the “stage that [he] had reached in [his] career” and this was the context for asking that question. The respondent further submitted that employees are regularly asked questions about the stage they are at in their career, both currently and where they see themselves in the future. The Respondent maintained that this question relates to career progression as distinct from and unrelated to the age of an employee. It argued that in the Complainant’s case, the current stage of his career is as a full-time teacher and member of the senior management team of the school.

As the Complainant had applied to takeonadditional duties the Respondent contended that itisreasonableforanemployertoquestionanapplicantabouttheirabilityorfitnesstodo the extra work.It advised that as anAssistantPrincipal,the Complainanthad already takenon additional responsibilities and hours.On that basis the question askedwas not a questionthat relatedtoage, either directly or indirectly; it concernedthe Complainant’s abilityto take on andmanageanincreasedworkload.

The Respondent submitted that from the Complainant’s response to the question at the interview, it would appear that the Complainant understood the question as concerning his physical fitness to take on the duties associated with the position, and in response to the question had stated that he was in the gym daily at 5 am and that he was full of energy. The Respondent therefore maintained that the interviewers were left no doubt as to the Complainant’s physical fitness. The Respondent contended that the Complainant had wrongly interpreted this discussion at the interview related to his age and maintained that the physical fitness or ability of an employee to take on additional duties is not a question that relates to age. 

The Respondent submitted, that a reference to the “stage” of the complainant’s career is not a reference to his age but that it relates to the current stage of his career. It suggested that the Complainant is a member of the senior management team, consisting of the Principal, Deputy Principal and Assistant Principals, which includes teachers of a range of ages. The Respondent contended that the same question would have been asked of any other member of the senior management team had they applied for the position, regardless of their age.

It was submitted that the basis of the complaint was that the successful candidate happened to be younger than the Respondent, but this does not provide a prima facie case of discrimination. The Respondent maintained that there was not discrimination on grounds of age, and that the Complainant has not been discriminated against in the selection process, as alleged, or at all.

The Respondent maintained that the disputed question relating to energy to do the job vis a vis the stage the Complainant was at in his career was asked under area 5 of the selection criteria. It submitted that a review of the marks awarded under this area shows that the Complainant was awarded one mark less than the successful candidate, with the Complainant scoring a total of 6 marks out of a possible 8, and the successful candidate scoring a total of 7 marks. It contended even if these marks were excluded from the overall total marks awarded, the successful candidate would have outscored the complainant by a margin of four marks rather, with 28 marks compared to 24.

The Respondent provided evidence of the notes taken at the interview and to the marking of the two candidates. Five areas are identified for marking, none of which refer to the energy of the candidate or the about the stage in career that a candidate is at.

The Respondent acknowledged that in an effort to resolve the matter locally that the School Principal attended two meetings with the Complainant following the interview process to hear his grievance and that matters were not resolved in that process.

At the within hearing the Respondent acknowledged that the Complainant was asked at this stage of your career have you the energy [for the additional role], and can you make a difference.  The Respondent acknowledged the successful candidate was also asked that question, but not in the same way.  The Respondent maintained as the interview progressed the Complainant was asked the question at the end of the interview.  As the Complainant was in a senior management position as Assistant Principal and holding a range of responsibilities he was asked if he would have the energy for the energy to take on additional responsibilities at this stage in his career.

The Respondent submitted that following the closure of schools on 12 March 2020, a decision was taken by the Board of Management of the College to suspend payments during the COVID-19 lockdown to the four members of staff who held the position of Caomhnóir. Subsequently, in August 2020, the Board of Management made a decision to discontinue the Caomhnóir role. The College has implemented a new collaborative system which involves the participation of prefects under the oversight of one of the Assistant Principals of the College. In the event that the complainant had been successful, therefore, he would only have held the position for one school year and would only have been paid by the College for the position from September 2019 to February 2020.

Findings and Conclusions:

The Complainant, a 60 year old teacher has alleged that he applied for a the additional post of Caomhnóir but a candidate 30 years younger was appointed to the post.

The Employment Equality Act 1998 as amended, defines under S6 that discrimination shall be taken to occur when 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 the Act referred to as ‘discriminatory grounds’). With reference to the case within, the discriminatory groundis where they are of different ages,(in this Act referred to as “the age ground”)

In addition, Section 8(1)(b) of the Act states an employer shall not discriminate in relation to conditions of employment and classifications of post.

Section 8 (4) of the Act states A person who is an employer shall not, in relation to employees or employment—(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or (b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

Section 8(5) (a)of the Act states 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 in any arrangements the employer makes for the purpose of deciding to whom employment should be offered.

In this case the Complainant who is 60 years of age, applied for the post of Caomhnóir, which required an additional four hours of work per week and provided an allowance of €3,300 per annum. The Complainant was an Assistant Principal and scored well in the interview process but was not successful compared to a candidate who was approximately 30 years younger.

The respondent has contended that in accordance with Section 85A of the Act the Complainant has failed to place the burden of establishing the primary facts on the Respondent.  Having considered this matter I am satisfied that the facts to this case are that the College ran a competition for the post of Caomhnoir, that two persons applied for and were interviewed for the post, that the age difference between the applications was circa 30 years, that questions relating to the stage in one’s career and energy to do the job were asked of the Complainant, and that the younger applicant was appointed to the post. I am therefore satisfied that the Complainant has established the facts from which discrimination may be inferred. These facts are not disputed between the parties. All that is required is that the facts must be of sufficient significance to raise a presumption of discrimination.

It is not disputed that the Complainant was asked at interview about the stage he was in his career    and if he had the energy to perform the tasks.  The candidate was marked lower in that category of the selection criteria compared to the younger candidate who was appointed to the post.

There can be little doubt to a candidate who is 60 years of age that being asked a question related to his stage in his career and the energy that he has to apply to a post, will give the impression that his age is a factor that is being considered.  The Collins English Dictionary defines energy as the ability and strength to do active physical things,... is determination and enthusiasm about doing things. In the context of employment and work, it is reasonable to conclude that such a question is motivated in some way to subjectively compare one candidate against another, and in the circumstances of the within case that comparison is directly or indirectly related to the age of the candidates.

As identified above, the Employment Equality Acts 1998-2015 prohibits discrimination on the grounds of age, with regard to the conditions of employment, in the classification of a post, or for an employer to have rules or instructions or otherwise operate a practice which would result in discrimination against an employee on the grounds of age.  

Therefore, based on the type of questions asked at the interview I find that the Respondent acted in a manner that amounts to discrimination of the Complainant on the grounds of his age.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As I have found the Respondent was in breach of its obligations under sections 6 and 8 of the Act, in that the questions asked at the interview are found to be discriminatory on the grounds of age, I find that discrimination on the grounds of age occurred and uphold the complaint. It is noted that the College ceased payments for the role of Caomhnóir after 6 months, and had the Complainant been successfully appointed he would no longer be in receipt of the allowance.

Taking all of the above into account, in accordance with S82 of the Act I order the Respondent to pay the Complainant compensation of €3,300.

Dated:   31st May 2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words: