Complainant

Respondent

Parties

Padraig Joseph  Mc Kenna

Dundalk Institute of Technology

Representatives

  In person

 IBEC

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-00052288-001

17/08/2022

The complaint was submitted to the Workplace Relations Commission on 17th August 2022 and relates to allegations of discrimination on the age ground in respect of access to employment. The complaint centres around vacancies for a Permanent Grade V (Fees and Grants) Staff Officer post in the respondent organisation. The post in question was part of a confined competition for the Education and Training Sector Candidate Pool. The candidate pool relates to eligible staff from the Education and Training Boards (ETB’s) and the Institute of Technology’s (IOT’s). As the complainant was not employed within that pool his application was not shortlisted.

The complainant alleges that he was unaware of the fact that it was a confined competition as this was not included in the advertisement. The complainant stated that if he had seen or been aware of that, he would not have applied.

The matter first came on for hearing on 2nd March 2023 and was to be heard remotely using the Webex platform. At that hearing, the complainant stated that his complaint was not related to his age and that he felt that he had been discriminated against simply on the basis that his application had not been accepted as the advertisement in question related to a confined competition which in his mind was discriminatory. There was also some confusion in relation to the receipt of the respondent’s written submissions for the hearing as the complainant had not received these in advance.

As the complainant was unrepresented, it was clarified to him that if he is claiming to have been discriminated against, he must base his complaint on one of the nine discriminatory grounds listed in the Employment Equality Acts, 1998-2015. The hearing was adjourned to allow the complainant to consider this point and to receive and review the respondent’s submissions. The hearing would be reconvened at a later date.

A reconvened hearing scheduled for 23rd January 2024 was cancelled as the complainant had connectivity issues due to an electrical black out following a storm. The matter proceeded remotely on 27th February 2024 using the Webex platform and no technical issues were reported by either side.

The complainant stated that he was sent details of a job description from irishjobs.ie in relation to vacancies that existed in Dundalk Institute of Technology. The complainant state that he applied for the Grade V post on 6th February 2022 and received confirmation that he would not be shortlisted for the post by email Dated 17th February 2022.

The complainant stated that he replied seeking clarification from the respondent in relation to where it stated in the job specification or advertisement that it was a confined competition for the education and training pool. The complainant stated that he did not receive clarity on this issue and his correspondence to the President of the Institute went unanswered.

The complainant stated that he was discriminated against in contravention of Section 8(5)(a) of the Employment Equality Act, 1998 which states as follows:

8(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

The complainant cited the Court of Justice of the European Union (CJEU) ruling of 2018 in respect of the Minister of Justice and Commissioner of Án Garda Siochána v Workplace Relations Commission to support his position that, in this instance, national legislation should be disapplied on the basis that it is inconsistent with the provisions of EU Law.

The complainant is also seeking compensation and damages in relation to his complaint.

The respondent refutes that the complainant was discriminated against on the age ground or at all. The respondent’s position is that the vacancy in question was filled in accordance with Circular Letter 0007/2017 and Circular letter 0045/2017 and was to be filled by way of a confined competition from the Education and Training Sector Candidate Pool.

The respondent stated that as well as the Grade V post that the complainant applied for, there was also a Grade VI post also being advertised at that time. While the complainant did not apply for this post, he was aware of the job advertisements as the vacancies in question were picked up electronically by way of a “scraping tool”, listed on irishjobs.ie and sent on to the complainant.

A witness for the respondent gave evidence by affirmation at the adjudication hearing in relation to the advertisement and confirmed that the following opening statement appeared at the beginning of the job description:

This is a confined competition from the Education and Training Sector Candidate Pool (The Education and Training Sector Candidate Pool is the pool of eligible applicants that may apply for administrative posts within the Education and Training Sector, the Education and Training Sector comprising Education and Training Boards (ETB’s) and Institutes of Technology (IOT’s).

While the complainant had stated he was unaware of this statement as he had not seen it, the respondent’s position is that the complainant, while reviewing the application form, should have seen and been aware of this requirement in relation to his application. The respondent sated that the reason that the complainant was not shortlisted was that he did not meet the eligibility criteria and not on the basis of his age which is the subject of his complaint. The respondent confirmed that the complainant was advised that he was not being shortlisted for the competition by email dated 17th February 2022.

The respondent contends that the complaint of discrimination on the age ground is without merit and should be dismissed.

The Applicable Law

Discrimination

Section 6 of the Employment Equality Acts 1998 provides as follows:

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 statusground”),

(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”).

Burden of Proof

Section 85A of the Employment Equality Act, 1998 provides as follows:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

Conclusions

In his complaint, the complainant asserts that he was discriminated against on the age ground in relation to access to employment. The basis of the complaint is that the respondent discriminated against the complainant by holding a confined competition for posts within the organisation.

The complainant stated at the first adjudication hearing that his complaint had nothing to do with his age. At the reconvened hearing on 27th February 2024, the complainant did not specify under which of the discriminatory grounds he wished to base his complaint. The basis of the complaint was that in the complainant’s view, a confined competition was discriminatory against those who were not employed in the public sector. It was explained to the complainant that he must state the discriminatory ground on which he wishes to base his complaint and must establish facts from which an inference of discrimination can be drawn. It is then that the burden of proof shifts to the respondent. The complainant did not meet these requirements despite being given a number of months to consider the matter between hearings.

In all of the circumstances of the compliant, I find that the complainant has not satisfied the burden of proof in establishing a prima facie case of discrimination.

For the reasons stated, I find that the complainant has failed to establish a prima facie case of discrimination. Accordingly, the complaint is not well founded.

Discrimination, prima facie