Complainant

Respondent

Parties

Jorja  Fogarty

Public Appointments Service

Complainant

Respondent

Anonymised Parties

Representatives

Darren Hassett, Advisor

Hugh Guidera, B.L., instructed by  Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059527-001

20/10/2023

The Public Appointments Service (PAS) advertised a recruitment campaign for Prison Officers in July 2022.  This competition had a closing date of  3.00pm on 04/08/2022.  The Complainant applied and her application progressed  through a number of stages.  She submitted her Leaving Certificate results in August 2023 and her application was then rejected as she did not have the required Leaving Certificate requirements as of 04/08/2022.  The closing date of 04/08/2022 was prior to the date the Complainant got her Leaving Certificate results  02/09/2022.  The Complainant believes that her exclusion from the competition was discriminatory and unfair.  The Respondent denies that the Complainant was discriminated against on the ground of age and submits that this competition was held in accordance with the Commission for Public Service Appointments (CPSA) Code of Practice 2022 which the Respondent is obliged to follow.  The Complainant submitted her complaint to the Workplace Relations Commission on 20/10/2023.

The Complainant applied for the post of Prison Officer with the Irish Prison Service through a campaign conducted by the Public Appointments Service. The closing date for this campaign was 04/08/2022.  Her application progressed through stages one and two of the application process.  At stage three, in August 2023,  she was required to submit the results of her 2022 Leaving Certificate. When she submitted this document, she was advised that her application would now be withdrawn as she did not possess the relevant qualification as set out in the campaign.  This was that she had to possess the required Leaving Certificate results by the closing date of 04/08/2022.  The Complainant obtained her Leaving Certificate results on 02/09/2022.

The Complainant gave evidence on affirmation, and she submits that she was successful in the various stages of the campaign up to August 2023.  She submits that having to provide details of her Leaving Certificate results one year after the competition closed and then having her application withdrawn was discriminatory to her and any other candidate who sat the Leaving Certificate in 2022.  The Complainant submitted that the 2023 campaign had a closing date in September and if the same parameters were applied in 2022, she would have been able to be appointed.  The Complainant stated that she believes this constitutes discrimination. 

The Complainant gave details of her review under Section 7 of the CPSA Code of Practice.  The outcome of this review was that there was no evidence that she had been discriminated against based on her eligibility.

In response to a question from the Adjudication Officer the Complainant confirmed that she received a copy of the information booklet relevant to the competition and that she had read its contents.  The Complainant was asked to clarify how the Respondent discriminated against her on the ground of her age.  She stated that this was because she undertook the Leaving Certificate examination in 2022 and as the results would not be available until September 2022 the closing date of 04/08/2022 discriminated against her and all the other Leaving Certificate students of that year. This this not happen in 2023.

The Complainant was cross examined on behalf of the Respondent.  She confirmed that when she applied for the position, she was confident that she would receive the required grades in her Leaving Certificate.  The Complainant confirmed that she was successful in the initial stages of the competition.  The Complainant was asked if she considered that the withdrawal of her application on the basis of the educational qualification was a mere technicality.  She confirmed that was her position.  It was put to the Complainant that the information booklet, which she confirmed to the Adjudication Officer she had read,  stated: 

“You should note that candidates’ qualifications/eligibility may not be confirmed until the latter stages of the selection/appointments process.  Therefore, candidates who do not possess the essential requirements on the closing date and who proceed with their application will not be eligible to be selected or offered a position in this competition.  Candidates who are unable to show that they hold the required qualifications may be withdrawn from the competition at any stage.  An invitation to tests, interview or any element of the selection process is not acceptance of eligibility”.

The Complainant stated that she did not see the educational qualifications as a technical term.  It was also put to the Complainant that when she completed stage two, she received a message on the public jobs message board that stated: 

“Candidates are reminded that an invitation to attend any part of the selection process is not to  be taken as implying that the Public Appointments Service is satisfied that you possess the requisite knowledge, ability and qualifications for this position”.  

The Complainant was asked if in view of that paragraph she felt that she was discriminated against and she confirmed that she felt that she was. 

It was put to the Complainant that she was advised at various stages what the distinction was between a Section 7 and Section 8 review under the CPSA Code Of Practice was and she confirmed that she was.  The Complainant was asked if it was her position that the review process what mishandled or not fit for purpose, and she stated that she believed it was not a suitable process.

It was put to the Complainant that the adequacy of the CPSA Code of Practice is not a matter for the WRC to assess and in that context the Complainant was asked why this matter was before the WRC.  The Complainant stated that she wanted to highlight the fact that students who sat the Leaving Certificate in 2022 and who wished to apply for the post of Prison Officer were discriminated against because of the date of their Leaving Certificate results.  The Complainant was asked if her request for a Section 7 review considered this, and she confirmed that it did.  The Complainant stated that she was not happy with the outcome of the Section 7 review.  The Complainant was asked if she was not challenging the internal review process and she stated that she was not, but she was highlighting the discrimination aspect.  The Complainant was asked if a Section 7 or a Section 8 would have reinstated her candidature in the competition, and she replied that it would not have done so.  The Complainant was asked why she proceeded with her application when she was aware of the eligibility criteria.  She stated that she had the grades required in the Leaving Certificate.

The Complainant was asked if she was progressing in the 2023 competition, and she confirmed that she was currently at stage two of that process.

In a closing submission on behalf of the Complainant Mr Hassett stated that the Complainant has lost a year of her working life due to the withdrawal of her Prison Officer application by PAS.  The case highlights the inequity of the 2022 Prison Officer competition.  The Complainant was not given equal status with any other Leaving Certificate students from any other year.  The evidence is clear that the internal appal process did not look at the inequality aspect of the Complainant’s complaint.  The fact is that the entire cohort of  Leaving Certificate students in 2022 were excluded and the Complainant is one of those.  Mr Hassett submitted that if PAS deliberately or accidentally excluded the Leaving Certificate students of 2022 neither answer would be acceptable.

It is a “remarkable coincidence” that the dates changed in 2023 and it is submitted on behalf of the Complainant that this happened as PAS learned from their mistake of 2022.  Mr Hassett stated that the Complainant is not before the WRC on the basis that she does not have a Leaving Certificate.  She was asked for this in August 2023 and then found herself excluded from the 2022 competition.

The review process undertaken by PAS was flawed. It did not look at the parameters of the competition and the effects of those on the Complainant.  PAS excluded all the Leaving Certificate class of 2022 but did not do so for the Leaving Certificate class in 2023.  The Complainant has met the requirements and her candidature should be reinstated and allow to progress to the final stage of the competition.

Ms Sinead Dolan, Data Protection Officer, PAS, gave evidence on affirmation.  She gave evidence that the Commission for Public Service Appointments  (CPSA) was established under the Public Service Management (Recruitment and Appointments) Act, 2004. It is the principal regulator of recruitment and selection in the Irish public service. The CPSA has a Code of Practice, and this Code sets out the principles and standards that must be adhered to at each stage of the selection process. It sets out the review and appeal mechanisms open to candidates, where they are unhappy with a selection process. PAS is a licence holder under the provisions of the Act and PAS is obliged to ensure that its recruitment activities are carried out in accordance with the Code.  The PAS did not draft this Code.

Ms Dolan outlined that the 2022 competition for Prison Officers came about when a client, in this case the Department, contacts the PAS to request that they run another competition.  The Prison service requests a competition when they need new recruits for certain dates.  Ms Dolan outlined that the closing date for a competition is determined by several factors such as the PAS capacity and Board selection. It was put to Ms Dolan that the Complainant’s submission suggested that the closing date for the 2023 Prison Officer competition was moved to September / October to correct the issue which the Complainant had with the 2022 competition.  Ms Dolan refuted this suggestion and outlined that the date is determined by the timeline that the Prison Service requires the new recruits.

It was also put to Ms Dolan that the Complainant’s submission stated that the 2023 competition deadline appeared to consider the date the Leaving Certificate results for that year were issued so that students in that year could apply.  Ms Dolan stated that this was incorrect, and the date of the Leaving Certificate results did not influence the closing date.

Ms Dolan was cross examined on behalf of the Complainant.  Ms Dolan was asked if she considered the parameters of the competition in the Section 7 review.  She confirmed that the review did not as a Section 7 review is a review of the process.  The review process is outlined in the Code of Practice and PAS does not design the review process.  It was put to Ms Dolan that the review process is restricted. She did not agree and noted that the Complainant initially submitted a Section 8 review and then changed to a Section 7 review which is restricted to a review of the process.

Ms Dolan was asked if the Code of Practice was relevant to an issue in relation to age.  Ms Dolan confirmed that it was relevant, and the code expects licence holders such as PAS to adhere to the principle of equality and that includes all nine grounds outlined in the equality legislation.

Ms Dolan was asked if this was the first time that the eligibility criteria were referred to the WRC.  Ms Dolan confirmed that it was and outlined that anyone who sat the Leaving Certificate in June 2022 would not have been eligible for the competition that was taking place in 2022.  Ms Dolan was asked who set the parameters for the 2022 competition and specifically the closing date of 04/08/2022.  Ms Dolan outlined that in general terms the advertising dates are agreed between the relevant client and the PAS service.  Ms Dolan stated that any criteria outlined must be met by the closing date.  The closing date for the 2022 Prison Officer competition was determined by the client’s intake requirements.

Ms Dolan was asked if she considered it fair to exclude a particular cohort of people.  Ms Dolan stated that this is a natural occurrence.  Any closing date will have several people who will fall short of the requirements by that date.  The PAS is a state body providing a state service.

Ms Karan Nesbitt, Talent Acquisition and Lead for Justice, gave evidence on affirmation.  She was asked to outline the basis for the 2022 Prison Officer competition.  She outlined that there would be regular communication with clients in relation to competitions.  The Irish Prison Service would indicate to PAS that they needed a further intake.  The decision to advertise a competition is based on when the new intake is required by the Prison Service.

Ms Nesbitt was asked about the Complainant’s submission which stated that the 2023 competition deadline appeared to consider the date the Leaving Certificate results for that year were issued so that students in that year could apply.  Ms Nesbitt stated that this was not correct.  She outlined that a closing date is a consequence of the advertising date.  This is usually several weeks after the advertisement is launched.  There is also a link with the assessment process.  The 2023 date was extended at the request of the Irish Prison Service as they wanted to hold off the closing date as they were having a stand at the Ploughing Championships that year and wished to use that opportunity to speak with potential applicants.

Ms Nesbitt was cross examined on behalf of the Complainant.  She was asked if the September 2023 deadline was a learning from the 2022 competition.  She stated that this was not the case, but the training intake was increased so they needed people to apply in advance of that. 

It was put to Ms Nesbitt that it would be better if deadlines were planned and, in that context, one would expect more from a State service.  Ms Nesbitt stated that it was not always possible.  There are many variable factors which influence a closing date.  Ms Nesbitt stated that a closing date will naturally exclude some applicants.  She gave an illustrative example that in the 2022 competition a candidate had to be 18 years of age by 04/08/2022 and if the person reached 18 years of age on 05/08/2022 they would automatically be excluded.  Ms Nesbitt stated that it was relevant that a decision in relation to a closing date is not based on the potential eligibility of every possible cohort of applicants. Other factors could be the PAS readiness to hold the competition if the client wanted a competition held as a matter of urgency.  Ms Nesbitt stated that the recruitment process in PAS is demand led.

It was put to Ms Nesbitt that this case has raised significant questions of concern in relation to the PAS process.  Ms Nesbitt disagreed and stated that students who were not 18 years of age on 04/08/2022 were also not eligible to apply.  Ms Nesbitt stated that the volume of applications in this kind of competition could range from 1000 to 2000.

In re direct Ms Nesbitt confirmed that the competition for the 2022 competition required candidates to sign a declaration in relation to their meeting the eligibility criteria and the Complainant signed such a declaration.

Mr Guidera, B.L., made a closing submission on behalf of the Respondent.  He noted that this complaint was brought under Section 77 of the Employment Equality Act and the Complainant had a two-pronged approach.  The first was discrimination and this is misconceived.  The second was a procedural grievance in relation to the CPSA Code of Practice.  It is not clear what the Complainant wants.  A complaint about the Code of Practice is an unusual complaint to submit to the WRC.  Any complaint about the CPSA Code of Practice in more amenable by way of Judicial Review and not the WRC.  The Code was not created by the Respondent.  The Public Service Management (Recruitment and Appointments) Act 2004 established the CPSA which is charged with devising such a code.  The Act also established the PSA which is granted a licence to carry out recruitment competitions for various public bodies, including the Irish Prison Service.

The Respondent has fulfilled its obligations under the Code.  The Complainant has availed of the review process under the Code, and this was explained to her in multiple e-mail exchanges with PAS.  It was the Complainant who decided to select a Section 7 review process.  The review options were further explained to the Complainant in August 2023 and the Code outlines these options.  The Respondent does not create the Code – the Respondent is obligated to follow the code.  The Complainant has not identified any shortcomings in the Code.

It was submitted on behalf of the Respondent that the discrimination claim is fundamentally misconceived.  There is no valid basis to the claim.  The Complainant has a number of hurdles to pass under the Employment Equality Acts.  Firstly, the complaint of discrimination must be linked to one of the nine grounds outlined in Section 6 (1) of the Act.  It is not sufficient to state that the complaint relates to Leaving Certificate students of a certain age.  The Complainant has pleaded indirect discrimination.  Section 22(1) of the Act states that it is incumbent on the Complainant to identify a comparator.  She has not done so.

The next hurdle is that the Complainant, under Section 85 A of the Act must prove on the balance of probabilities the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination.   The test for applying this section is well settled in several decisions and specifically in Mitchell v Southern Health Board [2001] ELR 201:

“The claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only when these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment”.

If the Complainant was successful in all these hurdles the Respondent has recourse to other saver measures in the Act which can be utilised.  Section 22.1 (b) provides a general provision whereby a particular provision can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The Respondent also relies on the provisions of Section 36(4) of the Act which provides that:

“nothing in this Part of Part II shall make it unlawful to require, in relation to a particular post – (a) the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, or (b) the production and evaluation of information about any qualification other that such a specified qualification”.

The Complainant’s grievance is that the cut off date of 04/08/2022 specifically discriminates against Leaving Certificate students.  This is not analogous to any other claims before the WRC or the Labour Court.  The Labour Court in Health Service Executive v Fitzgerald EDA 1915 held in relation to the application of Section 36(4) of the Act:

“The effect of this provision is to place outside the purview of the Act a requirement of the type mentioned in paragraphs 9(a) or (b) of the subsection which, were it not for that subsection, could constitute unlawful indirect discrimination on any of the discriminatory grounds.  Where an educational qualification is in issue, as in the instant case, the saver only applies where it is a generally accepted qualification for the particular post”.

The Respondent is permitted to require Leaving Certificate results and it is difficult to see how applying certain dates could made that requirement discriminatory.  It would seem very unusual that a competition closing on a certain date can be discriminatory.  In other years the competition for the same role closed in the months of February and March.  The Complainant’s representative believes that these competitions should be designed to accommodate Leaving Certificate students of that year and if not so then its discriminating.  It was submitted on behalf of the Respondent that Leaving Certificate students from 2022 would be eligible for the 2023 competition.  In any recruitment competition there will be two cohorts – those who are eligible and those who are ineligible.  It is not discriminatory if someone does not meet the eligibility requirements outlined for the post.

It is the Respondent’s position that the evidence shows that these competitions are organised on a need or demand led basis.  The purpose is not to accommodate Leaving Certificate students of any particular year.  It is not sufficient for the Complainant to apply in advance on the basis that she might meet the eligibility requirements. It is clear that the Complainant has not discharged the burden of proof required by Section 85(A) of the Act.  There was no evidence adduced in relation to age discrimination and no comparator was put forward.  In that context there can be no presumption of discrimination.

It was also submitted on behalf of the Respondent that the fact that the Complainant progressed through a number of stages in the competition does not prove that she is qualified for the post.  It is not correct for the Complainant to submit that the Leaving Certificate is a mere technicality.  A qualification is an eligibility requirement and is a pre-condition of suitability.

Under the CPSA Code of Conduct PAS cannot waive an essential requirement for a particular person.  The Complainant knows this, and this was clearly outlined in the information booklet and on the Public Jobs notice.  There was a clear understanding given by the Complainant that she met the eligibility requirements, and this would be checked at a later stage in the competition in a similar way to reference checking. 

The Complainant has not met any of the proofs required by the Act.  It is not clear what reliefs are sought by the Complainant.  The 2022 competition has concluded and any relief in relation to that competition is unreal as it is closed and can’t be opened.  The Respondent, PAS, is a licence holder under the Code of Practice and under the provisions of that Code it is not open to PAS to reinstate someone into a competition.  PAS fulfilled its obligations in excluding the Complainant from the competition as she did not meet the eligibility requirements.

It is the Respondent’s position that the Complainant is not entitled to any relief in respect of this complaint.

This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. 

Section 6 of the Employment Equality Act, 1998, states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 subsection (2) (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) 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.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of her age. 

The Employment Equality Act, Section 85a (1) provides as follows:

“(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”.

To demonstrate that the Complainant has received less favourable treatment and that the less favourable treatment arose by virtue of her age, the Complainant must first establish a prima facie case of discrimination.  Prima facie has been held by the Labour Court in Rotunda Hospital v Gleeson [DEE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The Respondent notes that this requires that a Complainant has to not only establish the primary facts upon which she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.  The Labour Court in Southern Health Board v Mitchell (2001) E.L.R. 201 held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can vary significantly from case to case.  The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.  The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.  This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

In Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Labour Court elaborated on the interpretation of Section 85A stating:

“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”.

The Complainant contends that she has been discriminated against because of her age and the fact that she was excluded from the Prison Officer competition 2022 due the fact that she obtained her Leaving Certificate results after the closing date of 04/08/2022.  The Complainant was progressing through the various stages of the competition and when she was required to submit evidence of her Leaving Certificate in August 2023. The Respondent noted that she did not possess this qualification at the closing date of the competition.

I am satisfied that at all stages of the competition there was no ambiguity in relation to the eligibility criteria or the closing date of 04/08/2022.  The information booklet stated:  “In order to be eligible for selection as a Recruit Prison Officer, an applicant must, on the closing date of 4th of August 2022, satisfy all of the following requirements.”  The Leaving Certificate requirements were clearly outlined, and it was not disputed that the Complainant did not have a Leaving Certificate on the closing date.

The facts are that the Complainant applied for the post of Prison Officer in 2022 despite the clear evidence that she would not meet all the eligibility criteria on the prescribed closing date.  Her subsequent exclusion from the competition was as a result of the Respondent applying the stated eligibility requirements.  I do not accept that the closing date of this competition can be inferred as being discriminatory.  It is a matter for the Respondent and or their client department to decide on a closing date based on the exigencies at that point in time.

On the facts of this case, I must determine whether a prima facie case has been established and if so, has the rebuttal been sufficient.  In applying the test in Melbury above I am satisfied that the Complainant has not demonstrated sufficient facts that she was discriminated against because of her age.

I am satisfied that the Complainant has failed to make out a prima facie case of discrimination.  I cannot find in favour of the Complainant and the claim cannot succeed.

I find that the Respondent has not discriminated against the Complainant on the grounds of age contrary to the Acts and her complaint fails.

Discrimination age.