EDA2325

1. Appeal Of Adjudication Officer Decision No ADJ-00027722 CA-00035502-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 December 2022. A Labour Court hearing took place on 13 June 2023. The following is the Court's Determination.

DETERMINATION:

The Appeal

This is an appeal by Mr Bernard Lester (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00027722, dated 7 November 2022) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 16 December 2022. The Court heard the appeal in Dublin on 13 June 2023. The Complainant gave evidence to the Court on affirmation. No witnesses were called on behalf of the Public Appointments Service (‘the Respondent’).

The Factual Background

The Complainant unsuccessfully applied for the position of Senior Transportation Officer with Dublin City Council in 2019. Having been shortlisted by a panel established by the Respondent, he was interviewed for the position on 23 October 2019. His case is that he was subject to direct discrimination on the age ground during the interview process.

The Complainant’s Submission

The Complainant made a very comprehensive written advance submission to the Court in which he reprised in some detail his engagements with the Respondent and with the Information Commissioner following the impugned interview process. However, it appears that there are three principal issues that comprise the Complainant’s substantive submission in support of his complaint of discrimination: (a) the fact that the selection panel chose to amend the pass mark from 40% to 50% for each of the competencies; (b) a statistical analysis of the success rate of candidates in the competition by age group; and (c) that he was asked the following discriminatory question during his interview: ‘What do you think it will say on your headstone, in say twenty years’ time?’

The Complainant’s written submission included a contemporaneous handwritten note of the interview questions and answers he told the Court that he had drafted during his lunch break on the same day as his interview had taken place. He submits that his notes are a more accurate account of what had been said during his interview than the notes made on the day by the members of the panel and by the independent representative from the Respondent who was also present throughout the process.

The Respondent’s Submission

(a) It is submitted on behalf of the Respondent that a pass mark of 40% is merely a guideline and it is within the competence of a selection panel appointed for the purposes of a particular competition to set a different qualifying threshold having regard to its collective expertise. In this case, the selection panel chose to set the qualifying mark at 50% and this was applied equally to all candidates and cannot, therefore, be regarded as discriminatory in any way to the Complainant.

(b) The statistical analysis relied on by the Complainant - in his submission - demonstrates that the Interview Board “favoured younger candidates”. Counsel for the Respondent, however, submits that the breakdown of successful candidates placed on the panel was as follows: 30-40 age group – 16.7%; 40-50 age group – 66.7%; 50-65 age group – 16.7%. The Complainant was in the latter group which fared less well than the 40-50 age group but equally as well as the younger 30-40 age group. It follows, in the Respondent’s submission, that the statistical analysis viewed in its entirety does not establish an age bias against those in the age group to which the Complainant belonged.

(c) The Respondent denies that the Complainant’s recollection of the alleged discriminatory question is correct and submits that the question (which was asked of all candidates) was as follows: “Do you think your colleagues, say in fifty years’ time, will remember you as an efficient or effective manager?”

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “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 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.”

• “The type or range of facts which may be relied upon by a complainant may 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 appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Having regard to the submissions of the Parties in this case, and the oral evidence of the Complainant, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. It is clearly the case that each of the candidates was required to achieve a minimum mark of 50% in respect of each of the competencies under assessment i.e. all candidates were treated equally in this regard. The statistical analysis which shows the success rate of candidates by age group – albeit of little or no evidential value in itself in support of a claim of direct discrimination, in the Court’s view, – actually demonstrates that the age group of candidates to which the Complainant belonged fared statistically as well/as poorly as the much younger 30 to 40 age group. Finally, there is a direct conflict between the Complainant’s recollection of the wording of the disputed question and the submission of the Respondent in regard to it. This conflict is similarly reflected in the differing versions recorded on the one hand in the Complainant’s ‘contemporaneous note’ and the notes of the members of the panel, and of the Respondent’s representative, on the other. However, the evidential value of the Complainant’s note is greatly diminished in the light of the fact that it was not furnished by the Complainant to the Respondent until the first day of hearing before the Adjudication Officer notwithstanding the very intense exchange of correspondence that took place between the parties in the aftermath of the competition.

In summary, therefore, and for the reasons set out above, the Court finds that no prima facie case of age discrimination has been made out by the Complainant. The appeal, therefore, does not succeed and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
21 June 2023	Deputy Chairman