Complainant

Respondent

Parties

Bernard Lester

Public Appointments Service

Representatives

Self-represented

 Mary Paula Guinness BL

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-00035502-001

30/03/2020

In July 2019, Mr Lester was aged 62 and an acting Senior Engineer with Dublin City Council when he applied for a vacancy as a Senior Transportation Officer.  The selection process for the role was managed by PAS.  On October 23rd 2019, Mr Lester attended an interview.  The interview board was comprised of the following:

Chairperson, Ms Catherine Clancy

PAS representative, Ms Liz Howard

Board member, Mr Declan Wallace

Board member, Mr Hugh Cregan

Mr Lester claims that, towards the end of the interview, Mr Wallace asked him, “What do you think it will say on your headstone, in say, 20 years’ time?”  On October 25th, Mr Lester was informed that he did not reach the qualifying standard to be included on the panel of successful candidates.  He claims that, by being asked the question about what it would say on his headstone in 20 years’ time (“the headstone question”), he was discriminated against on the grounds of his age.  It is the respondent’s case that age played no part in the selection process for the job, that the interviewers were aware of their obligations and responsibilities under the equality legislation and that the selection process was fair.

Chronology leading to this Complaint

On October 29th 2019, Mr Lester asked for feedback from PAS regarding his application for the job of Senior Transportation Officer.  On October 31st, he was informed that, of the 19 people who applied for the job, he and seven others were called for interview and that six were placed on a panel of suitable candidates.  He was also informed that, at the interview, he demonstrated satisfactory evidence in three competencies, but that, in respect of the competency with the title, “Strategic Management and Change,” he had not shown “the depth and breadth of strategic management and change required for this specific role.”  Out of a possible 100 marks, he was marked 45 out of 50 for that competency, five marks short of the pass mark of 50.

Mr Lester submitted a request for an informal review of his application.  He claimed that the marks were unfair, that the assessment of his performance at the interview was unfair and, having reflected on the headstone question, he said that he had “begun to suspect that age was a factor in the decision to mark me down for elimination.”

On November 18th, Mr Lester received a reply for the Informal Reviewer, Ms Denise Fitzpatrick.  Ms Fitzpatrick informed Mr Lester that she spoke with the chairperson of the interview panel, Ms Catherine Clancy and with the PAS representative, Ms Liz Howard and that both said that they did recall the headstone question being asked.  Mr Lester replied to Ms Fitzpatrick, expressing his shock that Ms Clancy and Ms Howard didn’t remember the question.  He was also surprised that Ms Fitzpatrick had not spoken to the other two members of the interview panel, Mr Wallace and Mr Cregan.  Arising from the response to the informal review, Mr Lester requested a formal review of his application.  He based this request on the three criteria he submitted for the informal review, and, because of the failure of Ms Clancy and Ms Howard to recall the headstone question, he challenged the integrity of the interview itself.

On December 19th 2019, the Formal Reviewer, Mr Eamonn Purcell, wrote to Mr Lester.  He informed him that the interview board reviewed the information material to his request for a review and that they advised him that his responses under the competency, “Strategic Management and Change,” lacked focus and were at a more operational than strategic level.  Mr Purcell also informed Mr Lester that he investigated his concerns about the headstone question and that he had consulted with the members of the interview board and the PAS representative on the board.  Mr Purcell said that the chairperson and the PAS representative had no recollection of the question about the headstone but the chairperson remembered that one of the members of the interview board, Mr Declan Wallace, asked all the candidates how they would like to be remembered by their colleagues or how their colleagues would describe them.  Mr Purcell told Mr Lester that he consulted with Mr Wallace, who assured him that Mr Lester’s performance at his interview was judged objectively and that the questions he was asked was asked of all the candidates.

Concluding his response as part of the formal review of his application, Mr Purcell told Mr Lester that the Recruitment Manager, Ms Fitzpatrick assured him that the interview board had been formally advised of their obligations under the equality legislation.       

On December 23rd, Mr Lester replied to Mr Purcell, arguing that he had not considered two out of the four criteria he submitted as part of his request for a formal review of his application.  He said that he reiterated his shock that Ms Clancy and Ms Howard could not recall the headstone question and he said that he wasn’t asked the question that Mr Wallace claims he asked all the candidates.  Mr Lester stated his belief that “conscious / unconscious bias is alive and well…”and that he experienced unconscious bias in his interview.  He noted that the information about the ages of the 19 applicants showed that only three were aged over 60 and that he was the only one of the three invited for an interview.

On January 7th 2020, Mr Purcell replied to Mr Lester, but his letter contained a repeat of the respondent’s previous assurances regarding what Mr Lester referred to as “the infallibility of the interview board” and the integrity of the process.  Mr Lester claimed that Mr Purcell ignored his criticism of his earlier report and his recommendation that the Formal Review should be revised.  He did not explain why Mr Wallace or the fourth member of the interview board, Mr Hugh Cregan, did not comment on the headstone question.  Mr Purcell also ignored Mr Lester’s assurance that the chairperson was mistaken in her belief that Mr Wallace asked all the candidates how they would like to be remembered by their colleagues.

Mr Lester’s view was that the informal and formal reviews of the application process had not addressed his concerns about discrimination and, on March 3rd 2020, he submitted an ES1 form to the respondent, claiming that he had been discriminated against on the age ground.  The respondent replied on March 24th, denying that discrimination had occurred.   Although Mr Lester was not given a copy of the notes of his interview on October 23rd 2019, the respondent’s reply to the ES1 incorrectly stated that a copy of the notes were provided to him.

On March 30th 2020, Mr Lester submitted his complaint of discrimination to the WRC.  For much of 2020 and also, during 2021, the services of the WRC were seriously reduced because of the Covid-19 pandemic and a hearing was scheduled for May 7th 2021.  The day before the hearing, Mr Lester received a copy of the respondent’s submission, but without a copy of the notes of his interview on October 23rd 2019, which were referred to in the submission.  When the hearing opened properly on November 18th 2021, Mr Lester was in possession of all the documents related to his application and his requests for an informal and formal review.  He also received a copy of his interview notes and redacted copies of the interview notes of the five other candidates. 

Mr Lester’s Case that Discrimination Occurred

At the hearing, Mr Lester said that he recalled the questions he was asked at the interview on October 23rd 2019 and he committed his recollections to paper immediately afterwards.  He said that he particularly remembers the question about what he thinks will be written on his headstone.  He argued that he was not treated in a fair and consistent manner, because no other candidate was asked this question.  That’s correct

Mr Lester said that he believes that, at the interview, he demonstrated satisfactory evidence in all the competencies, including Strategic Management and Change.  In his submission in advance of the hearing, Mr Lester said that his career has been long and varied since he started working at age 17 until he took on his current position in March 2020 as acting Senior Engineer, Transportation, with Dublin City Council.  He provided a summary of his working life overseas and in Ireland, and of his qualifications, up to his Masters qualification in Environmental Civil Engineering from the University of Liverpool in 1992.

Mr Lester’s case is that the decision of the interview board to fail him on the Strategic Management and Change competency is wrong and its comment that his responses lacked focus and were at an operational rather than a strategic level was unfair.  He claims that no example was provided to justify this assessment.  For this reason, he claims that the 45 marks awarded were a reflection of age discrimination driven by conscious / unconscious bias rather than a fair assessment of his performance.

Regarding the responses of the informal and formal reviews of his application, Mr Lester submitted that the responses to his requests for a review were formulaic, “comprising denial, obfuscation and PAS rejection phraseology.”  He listed his concerns about the responses as follows:

The reviewers advised that the chairperson, Ms Clancy and the PAS representative, Ms Howard, did not recall Mr Wallace’s question regarding what Mr Lester thought might be written on his headstone.  Their failure to recall the question creates doubt over the integrity of the interview process.

The informal reviewer, Ms Fitzpatrick, did not consult with Mr Wallace, or the fourth interview board member, Mr Cregan, about the headstone question.

Ms Clancy informed the formal reviewer, Mr Toner, that Mr Wallace asked all the candidates how they would like to be remembered by their colleagues or how their colleagues would describe them.  Mr Lester said that he was not asked this question.

Mr Lester claims that the respondent’s formal review process is fundamentally flawed because it did not deal properly with all the concerns he raised in his request for a review.

Mr Lester claims that the notes taken by the PAS representative, Ms Howard, are haphazard.  He gave an example, where Ms Howard wrote in her notes, “arches always inherited in aesthetics,” whereas he said, “architects are always interested in aesthetics.”  He claims that Ms Howard’s notes are not a proper record of the questions that were asked.  For example, her notes record a question, “50 years, efficient v effective.”  However, she advised the formal reviewer, Mr Toner that “DW’s question centred around how he felt he would be remembers in say 5 years’ time – effective / efficient?”  Mr Lester asserted that this proves that the accuracy of the interview notes is questionable.

As he was advised that contemporaneous notes of the interviews do not exist, Mr Lester submits that his own notes are a more accurate record of the proceedings.

In the appeal report produced by Mr Toner dated December 12th 2019, details are provided regarding his communication with the interview board members.  Mr Wallace advised that the question that Mr Lester referred to was asked in the sense of “how do you think your colleagues will remember you in the future, say 50 years’ time – effective v efficient?”  He said that the same question was asked of other candidates, but that it may have been phrased differently.  Mr Wallace said that he would not want to cause stress to a candidate and this was not the intention of the question.  Mr Lester said that this is telling because Mr Wallace and Ms Howard recalled a question being asked about how Mr Lester thought he would be remembered in 50 years or five years and also, the question about the relative merits of efficiency and effectiveness.  He said that Ms Howard failed to take a note of the full details of the question that Mr Wallace asked.  Also, there is no record of the reply to the efficient / effective part of the question.  He claims that Ms Howard’s assertion that, if the headstone question had been asked, she would have recorded it, is hardly credible.  In the notes of the interviews, there is no record of the “convoluted” version of the question that Ms Clancy claims was asked of all the candidates.  The interview board members are not in agreement with Ms Howard on the details of the question that Mr Wallace asked but they all agree that it was not the question that Mr Lester recalls being asked.  For this reason, Mr Lester argued that the interview board members and Ms Howard are in denial.     

Mr Toner spoke with Ms Clancy who advised him that Mr Wallace asked all the candidates how they would be remembered by their colleagues or how their colleagues would describe them, or what they felt would be their legacy from their current role.  She said that she had no recollection of any question being asked about what would be written on a headstone.

Ms Howard told Mr Toner that if the headstone question had been asked, she would have taken a note of this for the interview record.  She said also that she would have told the interviewers that the question wasn’t appropriate.  She said that Mr Wallace’s question was about how the candidate thought he would be remembered in five years’ time, from the perspective of efficiency versus effectiveness.

Mr Cregan told Mr Toner that he didn’t recall 20 years forming part of any question asked of the candidate.  He said that he was asked about how his colleagues would reflect on his time in his current role.  

Ms Clancy is noted as having told Mr Toner that, at the interview, Mr Lester told the members that it was a considerable number of years since he did an interview and that he had two years left to retirement.  Mr Lester denies that he made this statement.  He claims that this statement also demonstrates that there was a bias against him from the start of the interview.

In conclusion, it is Mr Lester’s belief that he was treated unlawfully by the respondent during his interview on October 23rd 2019 for the position of Senior Transportation Officer with Dublin City Council, and in their subsequent handling of his informal and formal appeals.  He argued that he was not treated consistently with the other candidates and that he was discriminated against on the grounds of his age.

Evidence of The Complainant, Mr Lester

When the hearing opened properly on November 18th 2021, Mr Lester read the first five pages of his submission.  He then summarised his experience of seeking an informal and a formal review of the decision of the interview board on October 25th 2019 and his requests under the Freedom of Information Act 2014 for disclosure of documents, including a copy of the interview notes.  By October 2021, when he received notification of the hearing to be held on November 18th, he had not received a reply to his request for voluntary discovery of information which he submitted four months previously.  On November 4th, he received a reply from Mr Toner, with relevant emails from the chairperson of the interview board, Ms Clancy, and from a member of the board, Mr Cregan.   He also received redacted copies of the notes of the interviews with the other seven candidates.

Mr Lester referred to a document that shows that on December 10th 2019, as part of the formal review of his interview, Mr Toner spoke to Mr Wallace about the headstone question and that Mr Wallace replied that the question was phrased in the sense of “how do you think your colleagues will remember you in 50 years’ time?”  Mr Lester questioned why this wasn’t included in Mr Toner’s response to his formal review on December 19th 2019. 

Also, on December 10th 2019, in an email to Mr Toner, Ms Clancy advised that, at the interview, Mr Lester commented that it had been a long time since he did an interview.

Cross-Examining of Mr Lester

Ms Guinness commenced her cross-examining by proposing to Mr Lester that he couldn’t know how his skills matched those of the other seven candidates who were interviewed.  Mr Lester said that his career demonstrates that he has strategic management experience.  Ms Guinness said that Mr Lester’s experience did not meet the threshold required for the job.  Mr Lester responded, “why didn’t they show where my answers failed?”  Ms Guinness replied that the interview board do not have to demonstrate this; their view was that the answers given by Mr Lester showed that he had operational, rather than strategic experience.  Mr Lester said that this criticism wasn’t constructive, and that it wasn’t open, beneficial or fair.  Ms Guinness suggests that this doesn’t show that Mr Lester was discriminated against.  She said that much of Mr Lester’s submission suggests criticism of the decision of the interview board, rather than discrimination.  Mr Lester replied that he wasn’t treated fairly and that he wasn’t happy with the responses of the reviewers.

Ms Guinness referred to the fact that Mr Lester didn’t produce his contemporaneous notes of his interview for the formal review process, and he didn’t produce them in advance of the first day of this hearing in May 2021.  Mr Lester said that the interview was held at 10.20am on October 23rd 2019 and that he returned to his office in Wood Quay and wrote up a note.  He said that he typed the note only recently.  Ms Guinness asked Mr Lester why he didn’t produce the notes for the informal or the formal review and he replied that he hadn’t received the interview notes from the interview board.  Ms Guinness suggested to Mr Lester that he knew that Ms Clancy didn’t recall the headstone question being asked, but he kept his notes until now.  Ms Guinness suggested that the notes produced by Mr Lester are more fulsome than those of the PAS representative at the interview board.

Considering the headstone question, Ms Guinness put it to Mr Lester that the statement in his notes is not what he said in response to Mr Wallace.  Mr Lester said, “that’s the answer I gave.” 

Ms Guinness said that Mr Lester described his response to the informal review as “shocked.”  She said that if he had had his contemporaneous notes at that point, he would have produced them.  Mr Lester replied that he held on to his notes because he was waiting until he had a copy of the respondent’s notes.

Ms Guinness referred to Mr Lester’s surprise at the response of the formal reviewer, Mr Toner, because he didn’t set out the details of his conversation with Mr Wallace.  Mr Lester said that Mr Toner separated his points of concern and that he dealt with two points and then considered the remaining two as observations.  Ms Guinness said that it is apparent that the headstone question was outside the scope of the formal review, but that Mr Toner addressed it in his reply of December 19th 2019. 

Ms Guinness pointed to Mr Lester’s identification of what he considered to be anomalies in the notes provided by the respondent.  She referred to Ms Clancy’s comment regarding the questions to the candidates about how they would like to be remembered in five years and 50 years.  Ms Guinness suggested that this shows that a general question was put to candidates regarding what their contemporaries would say about them after they left their jobs.  Mr Lester said that he was asked what would be written on his headstone in 20 years.  Ms Guinness said that the efficient versus effective questions was asked of all the candidates, but Mr Lester said that he wasn’t asked that question.

Mr Lester said that the headstone question applies differently to people younger than him.  It may be 30 or 40 years before a younger person has a headstone.  Ms Guinness repeated that there is no recollection by any member of the interview board that a question was asked of any candidates about what might be written on their headstone.  If the question had been asked, the PAS representative, or the chairperson would have told them that it wasn’t appropriate.  Mr Lester replied, “they are wrong.”  He said that the recollections of the members of the board are hardly credible.  He identified inaccuracies in the respondent’s notes, for example, Ms Clancy said that she remembers Mr Wallace asking how candidates would be remembered in 50 years.  Ms Guinness replied that Ms Clancy said, “in five years,” or “sometime in the future.”  Mr Lester said, “why did she write 50 years?”  He said that he has reached his opinion that he was discriminated against based on Ms Clancy’s email to Mr Toner for the purpose of the formal review.  He said that Ms Clancy could remember that Mr Wallace asked a question about how Mr Lester would like to be remembered “down the line in say, five years, efficient versus effective,” but that isn’t in her notes.

Mr Lester denied that he made any reference to his age during his interview.  He did not refer to his graduation in 1983 and he did not say that he was approaching retirement.

Closing Submission

Mr Lester said that his position is clearly set out in his written submission.  He referred to Mr Purcell’s evidence and his apology that he wrote on the ES2 response that he had provided Mr Lester with the official notes of his interview.  He said that Ms Clancy said that the official notes were not a verbatim record and that she was wrong when she said that he mentioned at his interview that he was two years from retirement. 

Referring to Ms Fitzpatrick’s evidence, Mr Lester said that she took no account of the official notes of his interview.  Mr Toner said in evidence that everyone was treated fairly, but Mr Lester said that the notes show that different questions were asked of each of the candidates.

Mr Lester said that he found it interesting that Mr Wallace was not called to give evidence and that Mr Toner didn’t get an email from Mr Wallace in response to his queries during the formal review process.

Mr Lester submitted that his notes are better than the official notes, and that they remain in existence, whereas the notes taken by interview board members were shredded.

Mr Lester said that Ms Howard had a problem recording what he said at the interview.   He said that he was taken aback when he was asked the question about what might be written on his headstone.  He submitted that this was clearly an age-related question.  He said, “I know I was asked that question.”  He said that the PAS interview record says something different and the notes of each of the board members do not exist.

Mr Lester submitted that he has shifted the burden of proof and he has shown that he was discriminated against on the grounds of his age.

The respondent’s written submission sets out the chronology of events that led to this complaint being submitted to the WRC on March 30th 2020.

In advance of the interviews on October 23rd and 24th 2019, the interview board was provided with various documents including a copy of the PAS “Good Interview Practice,” the main interview guide and a copy of a document titled, “Public Appointments Service – Some Important Issues” which highlighted the nine grounds of discrimination. 

It was agreed that the interviews for the role of Senor Transportation Manager would focus on four competencies:

1.              Strategic management and change

2.              Delivery of results

3.              Performance through people

4.              Personal effectiveness

Eight people were called for interview.  In the documents submitted for the hearing, the respondent included a copy of the report of the interview board and a copy of the interview notes of each of the candidates.  Six of the eight candidates were considered to be suitable. 

All the jobs that fall under the remit of PAS, and under the remit of the Public Service Management (Recruitment and Appointments) Act 2004 are considered in line with a Code of Practice published by the Commission for Public Service Appointments.  The Code sets out the general procedures to be adopted in respect of complaints submitted by candidates.  A candidate may submit a request for a review under section 7 or 8 of the Code of Practice.

On October 25th 2019, when he sent a request for feedback from his interview on October 23rd, Mr Lester asked about the total number of applications for the job, the number of candidates called for interview and the number of candidates placed on the panel of successful applicants.  On behalf of the respondent, Mr Matthew Pierce replied to Mr Lester on October 31st, providing him with the information he requested.  Later that day, Mr Lester replied to Mr Pierce, referring to the fact that he received 45 marks out of 100 in the competency on strategic management and change.  He complained that it was his view that 45 marks was not a fair assessment of his performance regarding this competency.  He did not mention any alleged discrimination at this stage.

Mr Pierce replied to Mr Lester, giving him information about the appeal process.  On November 1st 2019, Mr Lester submitted a request for an informal review, based on his assertion that the marks awarded at the interview were unfair, that the assessment of his performance was unfair, and that, based on the headstone question, age was a factor in the decision not to appoint him to the panel of successful candidates.

We know from Mr Lester’s submission that an informal review was carried out by Denise Fitzpatrick.  We know that the chairperson, Ms Clancy had no recollection of the headstone question and that she recalled that Mr Wallace asked the candidates how they thought they would be remembered by their colleagues.  Ms Clancy also said that Mr Lester mentioned his age at the interview but that, when they were reaching their decision regarding his assessment, his age was not considered.

Ms Fitzpatrick also spoke to Liz Howard, the PAS representative on the interview board.  Ms Howard also had no recollection of the headstone question and she said that, if it had been asked, she would have made a note and flagged it with the interviewers that it was not appropriate.  Ms Howard remembers that Mr Wallace’s question was about how the candidates would be remembered “down the line,” regarding their efficiency versus their effectiveness.

On November 18th 2019, Ms Fitzpatrick wrote to Mr Lester setting out her findings.  She confirmed that her investigation satisfied her that the scores that Mr Lester received were valid and that the candidates who were awarded higher scores performed better on the day of the interview.  She advised Mr Lester that, if he was not satisfied with her response, he could apply for a formal review.

Emmet Toner conducted a formal review in accordance with section 7 of the Code of Practice.  His role was to determine if the original decision of the interview board was justified by objectively examining the information material to the candidate’s application and by consulting with the parties involved in the decision-making process.  Mr Toner reviewed the following information:

§    The candidate information booklet;

§    The board member interview guidelines;

§    The candidate’s application form;

§    The request for an informal review;

§    The response to the informal review;

§    The correspondence between the candidate and the recruitment unit;

§    The board member interview training report;

§    Three application forms for successful candidates;

§    Copies of the interview notes of three successful candidates;

§    Information related to the overall pool of candidates.

Mr Toner consulted with each member of the interview board and with Ms Denise Fitzpatrick, the recruitment manager for local government appointments and the informal reviewer.  Having reviewed all the relevant documentation, Mr Toner was satisfied that the marks awarded to Mr Lester under the competency of strategic management and change reflected his performance on the day and that the marks should stand.  He confirmed that similar questions were asked of each of the candidates, based on their application form and experience.  The question that Mr Lester referred to regarding what might be written on his headstone, was asked in the sense of “how do you think your colleagues will remember you in the future, say in 50 years’ time, effective or efficient?”  The same question was asked of all the candidates but could have been phrased differently.  One of the interview panel members, Mr Cregan, said that he didn’t recall 20 years being part of any question, but he said that he recalls that Mr Lester was asked how he thinks his colleagues would reflect on his time in his current job.

Mr Toner wrote to Mr Lester on December 19th 2019, confirming the outcome of his consultations with the interview board members and his review of the interview notes.  He told him that he had been advised by the board members that, in respect of the strategic management and change competency, Mr Lester’s responses were at a more operational than strategic level.  None of the board members or the PAS representative had any recollection of the headstone question being asked, and Ms Howard said that, if the question had been asked, she would have recorded it in the interview notes.  The board members clarified that age played no part in their discussion regarding Mr Lester’s performance at the interview and marks were awarded based on their assessment of each candidate’s performance.

Legal Submissions

Ms Guinness referred to the definition of discrimination at section 6 of the Employment Equality Acts and to section 85A, which sets out the burden of proof which applies to claims of discrimination.  Regarding the burden of proof, Ms Guinness referred to the decision of the Labour Court in Mitchell v Southern Health Board[1] where the Court addressed the requirement for a complainant establish, to the satisfaction of the Court, the primary facts that are adequately significant to raise a presumption that discrimination has occurred.  In Arturs Valpeters v Melbury Developments[2], the Labour Court elaborated on the interpretation of section 85A and determined that the burden of establishing the primary facts lies “fairly and squarely” on a complainant, before the onus shifts to the respondent to prove that discrimination did not occur.

In a decision of the Court of Appeal for England and Wales, Madarassy v Nomura International Plc[3], Lord Justice Mummery held that, in discrimination cases, the law requires a tribunal to examine the evidence to determine whether the action complained of by the employee would, in the absence of an adequate explanation, be unlawful discrimination.  If the Tribunal makes that finding, then the burden of proof shifts to the employer to disprove the allegation of discrimination.

Ms Guinness submitted that it is not my role, as the adjudicator, to determine if Mr Lester was the best candidate for the job he applied for.  My task is to determine if he was discriminated against because of his age, in the manner in which his suitability was assessed.  Ms Guinness argued that it is not sufficient for Mr Lester to have the belief that, during the interview, he demonstrated the breadth of strategic management and change required for the role.  She argued that that is simply Mr Lester’s belief.

Mr Lester alleges that he was asked a question about what it would say on his headstone in “say, 20 years’ time.”  The members of the interview board are clear that there was no reference to a headstone and that all the candidates were asked how they would like to be remembered by their colleagues as either efficient or effective.  The notes of Mr Lester’s interview indicate the figure “50 years” beside this comment, suggesting that he was asked how he would like to be remembered in 50 years.  Ms Guinness stated that Mr Lester “put his age front and centre at the interview” by stating, “At my age, right is better” and by referring to the fact that he graduated in 1983 and that he was approaching retirement.

In the decision of the Labour Court in Director of Public Prosecutions v Robert Sheehan[4], it was held that a complainant must establish “a factual matrix from which the Court may properly draw an inference that discrimination has occurred.”  In its findings on this case, the Court determined that there was “no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies.”  However, in O’Halloran v Galway city Partnership[5], The Labour Court found that an inference of discrimination can arise where “a better qualified candidate is passed over in favour of a less qualified candidate” or where there is an unexplained procedural unfairness in the selection process.  Ms Guinness submitted that Mr Lester put forward no evidence to show that he was better qualified than the candidates who were placed on the panel and, arising from the thorough informal and formal reviews, no evidence has been put forward to show that Mr Lester was discriminated against on the grounds of his age.

In the case referred to above of Director of Public Prosecutions v Robert Sheehan, the Labour Court determined that, to shift the burden of proof to the respondent, it is not necessary for a complainant to adduce direct evidence of discrimination on either the age or gender ground.  In a decision of the UK Court of Appeal, King v Great Britain China Centre[6], Lord Justice Neill pointed out that “such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found by the Court.”  The rationale for this approach was explained by the Labour Court in its decision in Citibank v Ntoko[7] where the Court stated:

“This approach is based on the empiricism that the person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement.  Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging Complainants to prove something which is beyond their reach and which may only be in the Respondent’s capacity of proof.”

Ms Guinness referred to the requirement for Mr Lester to establish a “prima facie” case, based on a three-tier test.  In the first instance, he must establish that he is covered by the relevant discriminatory ground.  Secondly, he must establish that the specific treatment that he has alleged actually occurred, and, thirdly, he must show that the treatment he received was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.  Mr Lester meets the first test, because he is aged 62.  With regard to the second test, Ms Guinness submitted that the members of the interview board were fully informed, well prepared and aware of their obligations regarding, equality, transparency and fairness.  She submitted that, in the manner of questioning at the interview, Mr Lester was treated in the same manner as the other candidates for the job, but he did not demonstrate the depth and breadth of strategic management and change required for the job of Senior Transportation Manager.

Concluding her submission, Ms Guinness said that it is denied that age played a part in the selection process.  The reviews carried out by PAS were full and comprehensive and demonstrated that the selection process was transparent, fair and consistent in respect of all the candidates.  The respondent is satisfied that the selection process was fair and in compliance with best practice and with all the relevant legislation and Mr Lester’s allegation of discrimination is rejected in its entirety.

Evidence of the former Manager of Local Authority Recruitment, Mr Eamonn Purcell

Mr Purcell is a manager of senior executive recruitment in PAS and was formerly a manager in local authority recruitment.  He gave evidence on the second day of the hearing on January 26th 2022.  He described the formation of an interview board following a request from a local authority to carry out the recruitment process for a vacant position.  PAS is required to recruit for most jobs in local authorities.  Mr Purcell described the composition of an interview panel, with a representative from the client, a chairperson and a representative from the PAS.  The client representative must be at least one grade higher than the job being recruited for.

Mr Purcell described the training that must be undertaken by interviewers.  If the client representatives on an interview panel have not done training, this must be done in advance of the interviews.  Online training has been developed by occupational psychologists.  The interviewers are trained about the nine grounds of discrimination and they are taught how to deal with any evidence or suggestion of discrimination that arises at an interview.

Describing the informal and formal processes for reviewing the selection process, Mr Purcell said that the informal process is handled by the person managing the recruitment campaign.  The formal review is done by a member of the compliance team, who looks at the entire assessment process.

Mr Lester asked Mr Purcell a question about why he didn’t get the notes of his interview at the early stages of the review process.  Mr Purcell apologised for the delay sending Mr Lester the notes.

Evidence of the Chairperson of the Interview Board, Ms Catherine Clancy

Ms Clancy also gave evidence on the second day of the hearing, January 26th 2022.  She described her 30 years’ experience of conducting interviews.  She said that she has been an independent chairperson for the Public Appointments Service since 2008.  Ms Clancy referred to the training received by interviewers and she described the regular and newly updated training being developed.  She has been a participant on working groups to develop training for interviewers and she has trained other board members.

Ms Clancy described how documents are managed on a shared file in respect of each recruitment campaign.  She said that, for the purpose of short-listing candidates for interview, the board members would go through application forms and assess the candidate against the criteria for a job.  Ms Clancy said that Mr Lester was considered to have met the criteria for an interview.  She said that 19 candidates applied for the job of Transportation Manager and that two candidates withdrew from the process.  Eight were called for an interview.

On September 12th 2019, the board members met and went through the criteria for the job.  Ms Clancy said that they go through each application and assess if they meet the essential and desirable criteria for the job.  She said that she would depend on subject-matter experts on the interview panel to determine if their decisions are correct.  She said that the PAS representative briefs the board members on the criteria for the job and on the requirement to comply with equality legislation. 

When the candidates are selected for an interview, the board members decide which of them deals with specific competencies.  A date is then agreed for the interviews.  The PAS provides the interviewers with a guideline for interviewing.  Ms Clancy said that this is useful to ensure that the right questions are asked.

On the day of the interview, the board members meet 30 minutes in advance and they decide on the order of questioning.  The PAS representative briefs the members on confidentiality, conflict of interest and on the nine grounds of discrimination.

Ms Clancy referred to the interview Mr Lester attended on October 23rd 2019.  She said that the interviews generally took about 45 minutes, with 10 minutes each spent on questions on the three competencies, with three or four minutes spent on opening proceedings at the start and five minutes wrapping up at the end.  Ms Clancy said that the notes taken by the PAS representative, which Mr Lester described as “haphazard” are not verbatim. 

Ms Clancy said that the candidates may not all be asked the same questions, and that the questioning depends on the information provided on their application forms.  General questions could be related to their current jobs, which will vary, depending on the candidates.

Ms Guinness referred to Mr Lester’s concern that he didn’t score highly in the competency of Strategic Management and Change.  She asked Ms Clancy how a candidate can be assessed on this issue in 10 minutes.  Ms Clancy said that a candidate may provide an answer to one competency in response to a question on a different competency.  She said that all the answers provided by a candidate are taken into account, even if information is provided in response to a different question.  She said that marks are given immediately after an interview.  She asks each member of the interview board if the candidate has “got over the line.”  If any member says “no,” this is discussed with all the members.  She said that the subject matter expert leads that conversation.  Ms Clancy said that, with respect to Mr Lester’s answers, the consensus was that he did not show enough evidence that he met the criteria under the competency of Strategic Management and Change.

Ms Clancy said that she did not hear a question being asked of Mr Lester about what it might say on his headstone in 20 years’ time.  She said that she was “long enough in the game” and that she wouldn’t stand over this type of question being asked.  If the question had been asked, she would have apologised to Mr Lester before the interview ended and she would have tried to ensure that he wasn’t offended.  She said that she hadn’t got a full and complete recollection of Mr Lester’s interview, but that she can remember any interview where an issue arose and where she had to reprimand an interviewer.  She reiterated that she had no recollection of any mention of a headstone at Mr Lester’s interview.

Ms Guinness reminded Ms Clancy that, when she was contacted by the formal reviewer, Mr Toner, she said that Mr Wallace asked Mr Lester how he thought his colleagues would remember him.  Ms Clancy said that this question is often asked.  Its purpose is to try to establish if the candidate is self-aware, reflective and conscious of how they relate to others.  It gives a candidate an opportunity to “blow their own trumpet” and to provide examples that may not have been provided under the competency headings.

Ms Guinness referred to Ms Clancy’s recollection that Mr Lester said at his interview that it had been a long time since he did an interview and that he had just two years left to retirement.  Ms Clancy said that she doesn’t remember what this remark was in response to or why it was said.  While Mr Lester made these comments, she said that age had nothing to do with him not getting higher marks in the Strategic Management and Change competency.

Cross-examining of Ms Clancy by Mr Lester

Mr Lester referred to the preparatory meeting on September 12th 2019 at which the interview board members reviewed the application forms of the short-listed candidates.  He asked about the essential and desirable criteria for each role.  Ms Clancy said that the criteria reflect what is stated in the candidates’ information booklet.  If one of the interviewers decides that a criterion is missing, it cannot be amended by the interview board members.  No notes are taken at this meeting.

When deciding the order of questions at the interview proper, the PAS representative takes a note of which interviewer asks which question.  Ms Clancy said that she would give the interview board members her opening remarks.

Mr Lester asked Ms Clancy when the interview guideline is discussed.  She replied that the interview board members have a copy of the guide, but that it is not discussed on the day of the interview.  She said that the guideline is normally discussed at the short-listing meeting and that, by the time of the interview, they are “done and dusted.”  She said that all the interview board members are familiar with the guidelines.

Mr Lester addressed the issue of the consistency of the interviews.  He referred to the last interview on October 24th, the notes of which show that it started at 12.15 and that the last question was asked at 12.58.  Ms Clancy said that she doubted if that was correct because she said that she would be closing the interview at 12.58.  It was later clarified that this interview started at 08.58 and ended at 09.47.

Mr Lester said that, at his interview, he was asked 28 questions, whereas another candidate was asked 43 questions and another was asked 51 questions.  Ms Clancy said that sometimes a follow-on question is asked, where a candidate hasn’t fully answered a question the first time it is asked.

Mr Lester said that, under the heading of strategic management and change, he was asked five questions, whereas another two candidates were asked eight and 12 questions respectively.  Ms Clancy said that this must be a response to the conciseness of Mr Lester’s answers.  Some candidates try to contextualise their answers and further exploration might be required.

Mr Lester returned to the issue of consistency.  He said that if a candidate is asked less questions, they may not get an opportunity to express themselves.  Ms Clancy disagreed.  She said that some people are very concise and they can impress with the completeness of their answers.  Mr Lester suggested that the number of questions to be asked of each candidate should be decided at the planning meeting.  Ms Clancy said that the interviewers cannot anticipate how candidates will answer questions or what follow-up questions will be required.

Mr Lester referred to the pass mark in the interview guidelines.  Ms Clancy said that the pass mark in the interview guidelines was 40.  Mr Lester said that he got 45 marks for Strategic Management and Change, above the pass mark.  Ms Clancy said that, because of the seniority of the job, in discussion with the subject-matter experts on the interview board it was decided to increase the pass mark to 50.  She said that she thinks that the PAS representative on the interview board has to bring this to the attention of the PAS managers in charge of the campaign and it must be approved by them.

Mr Lester said that there is no information to show that that happened and he suggested that increasing the pass mark to 50 “comes across as mysterious.”  Ms Clancy said that the pass mark was considered to be too low for the seniority of the job.  She said that the guidelines are guidelines and that the interview board members have authority to change the pass mark.  She said that the pass mark is suggested in the guidelines and that the board has scope to make amendments.  The candidates are not told if the pass mark has changed.

Mr Lester said that, by changing the pass mark, two people missed out.  Ms Clancy said that Mr Lester’s answer to the questions about strategic management and change was reflected in the score of 45.  If the pass mark had been 40, he would have been marked below that pass mark.  She said that “we didn’t get evidence at the level we need.”

Mr Lester said that there are no notes to show that the pass mark was increased.  Ms Clancy said that the information is in the board report, but Mr Lester said that that report was written after the interviews.  He said that this wasn’t appropriate.

Mr Lester referred to Ms Clancy’s evidence that she had no recollection of Mr Wallace asking the headstone question.  Ms Clancy said that she remembered the question about how Mr Lester’s colleagues would remember him, efficient versus effective.  Ms Clancy said that she didn’t recall Mr Lester’s specific answer and that she had to rely on the notes.

Mr Lester said that each board member and the PAS representative who took the notes do not agree about the question.  He said that he could recall clearly what was asked.  He said that he believes that the question was age-related and inappropriate and that it shows that age was consciously or unconsciously a factor in the selection process.

Ms Clancy agreed that a question about a gravestone is inappropriate.  She said that if she missed that question, and she doesn’t believe that she missed it, the PAS representative would have intervened.  She said that she did not hear the question being framed in that manner.  She accepts that the notes refer to five years and 50 years, but she said that the question is the same, being about how your colleagues would remember you.  Ms Clancy said that the fact that Mr Lester didn’t get across the line on the competency was in no way age-related.

Mr Lester said that, at the interview, he never said that he had two years left to retirement.  Ms Clancy replied that she didn’t make it up.  She said that Mr Lester said that he was nearing retirement.  She said that he introduced the issue of his age in a lot of his responses.

Re-examining of Ms Clancy by Ms Guinness

In response to further questions from Ms Guinness, Ms Clancy said that, at the short-listing stage, they make a note of who is on the short list and who isn’t.  She said that they must be specific about why a candidate is not short-listed and the PAS representative makes a note of this.

Ms Guinness asked if the interview questions are developed from the application form.   Ms Clancy said that not all are driven by the information on the application form.  Some are general competency questions.  She said that there is no way of determining why certain probing questions are asked.

Ms Clancy said that the subject-matter expert on the interview board suggested that 50 was a more appropriate pass mark.  This was applied to all the candidates.

Evidence of the PAS Representative, Ms Fitzpatrick

Ms Fitzpatrick was the final witness for the respondent on day two of the hearing, January 26th 2022.  She said that her role at the time of Mr Lester’s application was as the manager of the local government recruitment team.

A copy of Mr Lester’s application for an informal review was included in the respondent’s book of papers.  Ms Fitzpatrick said that her job was to look at Mr Lester’s comments and to satisfy herself that he was treated fairly.  She said that she looked at the interview notes, she spoke to the PAS representative on the interview board, she reviewed the interview and she looked at the scores for each of the competencies.  Ms Fitzpatrick said that, based on the information available to her and her conversation with the PAS representative, she was satisfied that no discrimination occurred.

Cross-examining of Ms Fitzpatrick by Mr Lester

Mr Lester asked Ms Fitzpatrick is she knew that the pass mark for the competency questions had been increased from 40 to 50.  Ms Fitzpatrick said that, as the manager of the recruitment unit, she would have been aware of and approved the increase in the pass mark.  She said that she didn’t consider it necessary to record this on an official record and that it was recorded in the report of the interview board.  Ms Fitzpatrick confirmed that the change in the pass mark was cleared with the recruitment unit.  She said that she did not recall the specific conversation about this with Ms Howard, who was the PAS representative on the interview board.

Mr Lester asked about the process for changing the pass mark.  Ms Fitzpatrick said that the PAS representative phones the recruitment unit to ask for approval to increase the pass mark.  She said that she didn’t recall the conversation.  The interview board are then given a new marking sheet.  This happens before the interviews.  The approval to change the pass mark is given verbally.

In response to a later question from Ms Guinness, Ms Fitzpatrick said that it is not unusual for an interview board to increase a pass mark.

Mr Lester asked Ms Fitzpatrick about how she carried out her informal review.  She said that she had brief meetings with Ms Clancy and Ms Howard and that she did not record the meetings.  Mr Lester asked Ms Fitzpatrick how she could recall that Ms Clancy and Ms Howard said that Mr Wallace asked him a question about how his colleagues would remember him.  Ms Fitzpatrick said that this was not something that she needed to record, and that she wrote up her report immediately after her meetings with Ms Clancy and Ms Howard.  She said that she informed Mr Lester in her report of what Ms Clancy and Ms Howard told her.

Mr Lester said that Ms Fitzpatrick’s report doesn’t tally with Ms Howard’s notes of the interview.  He said that both documents refer to “efficient versus effective” but that the “odd one out” is the statement about 50 years and five years.  Ms Fitzpatrick said that this didn’t puzzle her, and that the reference to 50 years didn’t “raise a flag.”

Mr Lester asked Ms Fitzpatrick if her reply was a “template” reply.  Ms Fitzpatrick said that there is a format for replying to requests for a review, but that it is not a template.

Evidence of the Formal Reviewer, Mr Emmet Toner

Mr Toner works in the Corporate Compliance and Quality Assurance Unit of PAS and he was the formal reviewer of Mr Lester’s assessment for the job of Senior Transportation Manager with Dublin City Council.  He said that he received Mr Lester’s request on November 20th 2019.  The objective of the formal review is to ensure that the correct decision has been reached in the interview process and that each candidate’s application has been considered fairly.  Mr Toner listed the documents available to him for the purpose of the formal review: 

1.              The candidate information book;

2.              The training report for the interview board members;

3.              Interview guidelines;

4.              Application form;

5.              Interview notes;

6.              Interview results and the score for each of the competencies;

7.              Notes of the interview board

8.              Details of the successful candidates.

To ensure that the correct decision was reached, Mr Toner said that he spoke to all the members of the interview board.  He referred to the outcome letter, in which he said he was satisfied that the candidates were treated fairly and that there was no reason to disagree with the members of the interview board.  Before he reached this conclusion, Mr Toner said that he went through the interview notes of all the candidates and he got feedback from the interview board specifically about the questions on the competency of Strategic Management and Change.

Ms Guinness referred to Mr Lester’s reply to Mr Toner on December 23rd, when he said that, in his responses, Mr Toner did not address two of his concerns, and particularly, the issue of unconscious bias.  Mr Toner rejected that accusation and said that he incorporated Mr Lester’s concerns into his review.  Ms Guinness said that Mr Lester mentioned that Mr Toner did not include the comments of Mr Wallace and Mr Cregan in his report.  Mr Toner said that all the comments may not be included in a final report.

Referring to the increase in the pass mark from 40 to 50, Mr Toner said that this wasn’t unusual.

Cross-examining of Mr Toner by Mr Lester

Mr Lester suggested that Mr Toner’s report was done in two halves.  He said that his appeal was rejected, based on the first half of the issues he presented for review.  Mr Toner disagreed and said that a final determination is not make until all the evidence is considered.

Mr Lester asked Mr Toner if he thought it was unusual that the pass mark was increased from 45 to 50 and that there is no written record of this.  Mr Toner said that he noticed that the pass mark was increased and he said that this wasn’t unusual.

Mr Lester said that, in the notes of his interview, there is a reference to being remembered in 50 years’ time, with regard to efficiency or effectiveness.  He said that no other candidate’s notes refer to 50 years.  Mr Toner said that he didn’t know what was meant by 50 years and he asked the board members about this.  They said that the question was about how you would be remembered in the future, efficient or effective.  Mr Toner said that he received assurances from the members of the interview board that the question Mr Lester claims was asked was not asked.  He said that he is satisfied that the questioning was consistent across all the candidates.

Mr Lester noted that Mr Wallace told Mr Toner that he didn’t intend to cause Mr Lester undue stress.  He asked Mr Toner if he thought that was a strange comment.  Mr Toner said, “no.”  He said that he comes across this often.  The interview board members are concerned not to cause anyone distress.

Mr Lester referred to Mr Toner’s email from Ms Clancy on December 10th and from Mr Cregan on December 19th 2019.  He asked if he received an email from Mr Wallace.  Mr Toner said that he consulted by email and phone and in person.  Mr Lester said that, in Mr Cregan’s email, he didn’t refer to any of the questions he asked Mr Lester.  He asked if this was worthy of investigation.  Mr Toner said that Mr Cregan gave him feedback about the answers on the Strategic Management and Change competency and that this provided him with enough insight to make a decision.

Mr Toner said that the interview notes were easy to decipher.  Mr Lester said that he identified errors and that the interviewers may have had difficulty understanding his answers.  Mr Toner said that he was satisfied that there were no anomalies in the interview notes and that all the candidates were treated fairly.

Regarding the question about how the candidates’ colleagues would remember them in 50 years, Mr Toner said that he asked the interviewers about that question.  They assured him that the question was asked of all the candidates, but Mr Lester said that the notes show that he was asked about 50 years’ time and that others were asked the question differently.  Mr Toner replied that the notes for the candidates are never the same.  Mr Lester said that the notes on his interview are not the same as the others and that the 50 years question makes no sense.  Mr Lester said that none of the people that Mr Toner spoke to had the same recollection of the question.  Mr Toner replied that, with the passage of time, the answers become convoluted.  Mr Toner said that he did not have the notes of the individual interview board members, but he had the official notes of the interviews which were compiled by Ms Howard.

At this point in the cross-examining, Mr Purcell intervened to explain that the individual members of the interview board are not encouraged to take notes, and if they do take notes, they are destroyed.  Mr Lester said that the Code of Practice requires that records are maintained and Mr Toner replied that he is satisfied that the official record of the interviews was maintained.

Closing Submission

Summing up the respondent’s case, Ms Guinness said that Mr Lester believes that he demonstrated the depth and breadth of the requirements of the Strategic Management and Change competency.  The interview board did not agree.  She argued that Mr Lester has not shown that he was discriminated against.  Ms Guinness submitted that that the questions asked of each of the candidates are not required to be consistent and she said that the respondent does not accept that the notes produced by Mr Lester are contemporaneous notes, written up on the day of the interview.  Ms Guinness said that age did not play a part in the recruitment for the role of Senior Transportation Officer in Dublin City Council and she said that the burden of proof has not shifted to the respondent.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(f), the “the age ground” islisted as one of the nine discriminatory grounds.  Mr Lester argues that he was not appointed to the role of Senior Transportation Manager in Dublin City Council because of his age.   

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on Mr Lester to show that, based on the primary facts, he was treated less favourably than a younger person.  On behalf of the respondent, Ms Guinness referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments (footnote 2)which sets out the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

Mr Lester’s case is that the 45 marks out of 100 awarded to him under the competency of Strategic Management and Change were unfair and that the assessment of his interview was unfair.  He claims that, towards the end of the interview, one of the interviewers, Mr Wallace, asked him what he thinks it would say on his headstone in say, 20 years’ time.  He argues that this question introduced evidence of unconscious bias on the part of the interviewer.  Finally, because of anomalies in the notes of the interviews, and the failure of the interviewers to recall the headstone question, he claims that the interview process lacked integrity.

The Primary Facts

In September 2019, Mr Lester was shortlisted with seven other candidates from a pool of 19 applicants for the job of Senior Transportation Manager in Dublin City Council.  He was aged 62 when he attended an interview on October 23rd 2019.  He did not receive a pass mark on the competency question regarding Strategic Management and Change and he was not placed on the panel of suitable candidates for the job.

I am satisfied that, at the interviews that were conducted over two days on October 23rd and 24th, Mr Hugh Wallace asked the candidates a question concerning how they would like to be remembered by their colleagues.  The question may have been framed within a timeframe of five years, or 50 years or 20 years, but the objective was to get the candidates to reflect on their impact on others and, as explained by the chairperson, Ms Clancy, to give them an opportunity to “blow their own trumpet.”  None of the interview board members remembers any reference to the question being asked in the context of what Mr Lester thought might be written on his headstone.  The chairperson is a very experienced interviewer and she said that, if the question had been asked, she would have informed the candidate that it was not appropriate.

Findings

I do not accept as credible, Mr Lester’s evidence that he compiled an accurate note of his interview shortly after he returned to his office on October 23rd 2019.  This seems to me to be an unnecessary task for a busy person such as Mr Lester to undertake, and, if he did compile notes, it could only have been in contemplation of a dispute, which had not arisen at that time.  It seems to me that the notes are almost too detailed, and that it is unlikely that any person could recall with such precision, the questions and answers at an interview, even an hour later.  If Mr Lester had been in possession of notes, it would have been reasonable for him to use them to support his request for an informal review in November 2019.  I do not accept his explanation that he was waiting to get a copy of the respondent’s interview notes before revealing his own.  I accept that the respondent’s notes may not be entirely accurate, as they are not verbatim, but it is my view that Mr Lester’s notes do not accurately reflect the questions he was asked at the interview.

Having considered the evidence of the complainant, and the evidence of the witnesses for the respondent, it is my view that it is unlikely that Mr Lester was asked a question about what it would say on his headstone.  I have come to this conclusion, because it is not a tradition in Ireland to write anything on a headstone related to a person’s job, apart from some in the medical or military professions who might be given a prefix such as “Doctor” or “Colonel.”  It occurs to me that the answer to the question about what might be written on a headstone is one that would reduce most candidates to a long silence and is most unlikely to be asked at an interview.  I am satisfied that the chairperson of the interview board would not permit such a question to be asked.  If it was asked, the risk is of discrimination based on religion rather than age.  I am satisfied that Mr Lester was asked a question along the lines of, “how do you think you will be remembered by your colleagues,” and that, for some people, and, perhaps for Mr Lester, this might have some connotation of what might be said about a person after their death.  I am satisfied that, in some form or other, the question about how they will be remembered by their colleagues was asked of all the candidates and that Mr Lester was not treated differently to any other candidate.

Mr Lester argues that the headstone question, which I am satisfied was not asked, shows an unconscious bias against older people because older people are closer than younger people to needing a headstone.  For this argument to have substance, it must mean that the questioner looked at Mr Lester and had an image of him aging and dying.  I do not accept this premise as reasonable.  We know that discrimination is rarely overt and that, as held in the decision of the Labour Court in Citibank v Ntoko (footnote 7), “…the person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement.”  An interviewer with an unconscious bias against an older person is unlikely to make an obvious connection between a candidate and their age by suggesting that they might be thinking about what will be written on their headstone.

Conclusion

To shift the burden of proving that discrimination has not occurred, Mr Lester is required to show, as set out in Mitchell v Southern Health Board (footnote 1) that the primary facts on which he relies are “of sufficient significance to raise a presumption of discrimination…”  I find that the question that Mr Lester relies on to indicate that he was discriminated against on the ground of his age was not asked at his interview.  I accept that his assessment of his performance is different to that of the interviewers; however, on the primary facts, there is no evidence that age played any part in how he was assessed.  I find therefore, that the burden of proving that discrimination did not occur does not shift to the respondent. 

I have concluded that the complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination.  Based on this conclusion, I have decided that his complaint is not well founded.

Discrimination on the age ground