Brendan Noonan -v- Accountancy Connections (Represented by Ronan Daly Jermyn Solicitors)
1.1 The case concerns a claim by Mr. Brendan Noonan that Accountancy Connections directly and indirectly discriminated against him on the age grounds in terms of section 6(2)(f) of the Employment Equality Act, 1998 contrary to section 8 and 31 of the Act.
2.1 The respondent placed advertisements for two posts on Irishjobs.ie which stated that the minimum experience required was 2-3 years post qualification experience. The complainant applied for both positions. The respondent subsequently informed him in relation to both positions that he was too senior and that they were pitching the roles at recently qualified candidates with two years post qualification experience. The complainant submits that the requirement of 2-3 years post qualification experience automatically excludes all those aged 30 and over and he claims that he has been discriminated against on the age ground. The respondent denies that it directly or indirectly discriminated against the complainant.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 24 June 2003. On 26 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 16 February 2004 and from the respondent on 19 March 2004 and 22 April 2004. A joint hearing of the claim was held on 20 May 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The respondent advertised for the position of Senior Financial Accountant based in Galway on the recruitment website Irishjobs.ie. The salary for the position was circa 45,000 plus excellent package. The advertisement stated that "this is a highly visible role in the team in which you will provide direct support to the senior management team." Also, "the successful candidate will be a qualified accountant ...... You must be a self starter and motivated individual, capable of leading a team to achieve company goals."
3.2 The complainant applied for the position by e-mail on 27 May 2003 and enclosed a copy of his CV with the e-mail. On 28 May 2003, he received a response by e-mail stating "..... you are too senior for the role. They are pitching it at recently qualified level with circa 2 years industry experience." The complainant responded by e-mail stating that he was disappointed to be considered too senior especially when the position was titled 'Senior Financial Accountant'. He also stated that whilst he noticed that there was a minimum of 2-3 years experience required, the advertisement did not specify that it was circa or a maximum of 2-3 years. He did not receive a response to his e-mail.
3.3 Subsequently, the respondent advertised for the position of Senior Financial Analyst based in Galway on Irishjobs.ie. The salary for the position was between €50,000 - €60,000. The advertisement stated "the successful candidate will be professionally qualified (ACA or CIMA preferred) ..... and have the gravitas to communicate and work closely alongside executive teams.' Also, 'The position provides excellent development opportunities ..., with exposure to senior management throughout the corporation.'
3.4 On 10 June 2003, he applied for the position by e-mail and attached his CV. On 17 June 2003, he contacted the respondent because he had not got an acknowledgement of his application. He was asked to re-submit his CV which he did. On 18 June 2003, he received a call from the respondent telling him he was too senior and the client was looking for a qualified accountant with 2-3 years post qualification experience. He was also told he would be more senior than the person to whom the position would report and that would be a problem. He asked if both positions which had been advertised were with the same company and he was advised that they were not. The contents of his CV were not discussed at any point.
3.5 The complainant did not state his date of birth on his CV but stated that he started his first job in 1968. Most accountants would qualify by their mid twenties, assuming a 4 year Commerce degree with three years of practicals and further exams. Most qualified accountants with 2-3 years post qualification experience would be in their late twenties. By seeking such candidates only, employers and recruitment agencies automatically exclude those who are aged 30 and over.
3.6 The complainant believes that the term "too senior" has at least two possible meanings: (a) too old or older and (b) over qualified. He believes that in this case "too senior" is a euphemism for too old. He submits that excluding someone who would be older than the person to whom the position would report would be discriminatory. Regarding being 'over qualified', he submits that it could be interpreted as being the best qualified and so would be very flattering. However, he accepts that sometimes, there could be a concern that an 'over qualified' person may not have the proper motivation or commitment for the job. He submits that generically excluding all such candidates without discussing the position in each case is discriminatory.
3.7 The complainant does not consider either of the two advertised positions as lightweight. Words such as 'senior financial accountant' and having the 'gravitas to communicate and work closely alongside executive teams' do not reflect junior positions. The response that the complainant got in both cases from the respondent to his applications were (a) that he was too senior and (b) that they were looking for a candidate with a (maximum) of 2 to 3 years post qualification experience. He considers that these two reasons taken together for both positions reflect discrimination on the age ground.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The claim by the complainant that he was discriminated against on the age ground in the short-listing of candidates for two positions advertised by the respondent in May and June 2003 is denied in full. The respondent is a recruitment agency engaged by clients to advertise vacancies and choose suitable candidates to shortlist for interview for those vacancies. On 27 May 2003, the respondent advertised the position of Senio
Financial Accountant and the advertisement was placed on the recruitment website, Irishjobs.ie. In the context of that advertisement, it was indicated that the minimum experience was 2-3 years post qualification experience.
4.2 The respondent received an e-mail dated 27 May 2003 from the complainant enclosing his CV. From the details outlined in his CV, it is clear that the complainant had approximately 20 years post qualification experience at the date of the application for the position. On 28 May 2003, the respondent sent a replying e-mail confirming that the complainant was too senior for the role as the respondent's client was pitching the role at a recently qualified candidate with two year's industry experience. The respondent further confirmed that the complainant's details had been registered and that he would be contacted with any opportunities that arose at his level in the future.
4.3 On 6 June 2003, the respondent placed an advertisement on Irishjobs.ie for the position of Senior Financial Analyst and indicated that the minimum experience required was 2-3 years post qualification experience. The complainant applied for the position by e-mail on 10 June 2003. On 17 June 2003, when the complainant contacted the respondent by telephone, he was requested to re-send his e-mail as the respondent had not received it. On 18 June 2003, the respondent phoned the complainant and advised him that he was too senior for the role as 2-3 years post qualification experience was the appropriate level and the complainant was, in fact, more senior than the person to whom the successful candidate would be reporting.
4.4 The respondent contends that 2-3 years post qualification experience was an occupational qualification for the two positions and that any candidate with substantially more experience than that, regardless of their age, would not be short listed for the position. The nature of the systems operated by the respondent is such that they do not hold records of specific candidates who respond to available positions and therefore, no record can be adduced by the respondent regarding the identity of the candidates who applied for either of the roles.
4.5 However, the respondent's records show that no CVs were submitted by the respondent to their client for the first role for which the complainant applied (Senior Financial Accountant). A number of potential candidates were approached by the respondent but each candidate had already been approached by other agencies. In relation to the second role for which the complainant applied (Senior Financial Analyst), one candidate was interviewed by the respondent's client. The respondent can confirm that the candidate in question had two years post qualification experience at the time she was interviewed for the position.
4.6 The respondent rejects that there is prima facie evidence of an intention on the part of the respondent to discriminate in the selection process against older applicants. The respondent rejects the complainant's contention that the words "too senior" are a euphemism for candidates who are "too old". The words "too senior" as used by the respondent in rejecting the claimant's applications for the two positions referred to his years of post qualification experience and not his age.
4.7 The respondent vigorously denies any suggestion that may be made by the complainant that there is a blanket policy on the part of the respondent not to consider older applicants for positions. As a business, the respondent strongly endorses non discrimination in all its forms. The respondent has an Equal Opportunities Policy which has formed part of the respondent's employees' contracts of employment since 1995. Furthermore, the respondent has recently implemented a Diversity Policy. The respondent can provide evidence that they recently placed a 46 year old and a 62 year old as their level of experience was suitable to the roles to be filled. In the circumstances, it is the respondent's case that the complainant would not have been called for interview, regardless of his age, due to the fact that he had too many years of post qualification experience for the two roles for which he applied.
4.8 It is submitted that the respondent was entitled to refuse the claimant's applications for the two positions advertised on the basis that the claimant had too many years post qualification experience for the positions. The complainant's age was not a factor in the respondent's rejection of his applications. The complainant was not treated any less favourably than the other applicants. His application was given due consideration
along with all other applications for the positions and was refused on the ground that he was over qualified for the positions. It is therefore submitted that the complainant has failed to establish a prima facie case of discrimination.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly and indirectly discriminated against him on the age ground in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. I must also consider whether the respondent indirectly discriminated against the complainant in terms of section 31 of the Act contrary to section 8. I will also briefly refer to the issue of discriminatory advertising. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
5.3 The respondent is a Recruitment Agency engaged by clients to advertise vacancies and choose suitable candidates to shortlist for interview. Section 2 of the Employment Equality Act, 1998 provides that "employment agency" means "a person who, whether for profit or otherwise, provides services related to the finding of employment for prospective employees or the supplying of employees to employers". It is the case, therefore, that the business of the respondent falls within the definition of an "employment agency" as defined in the Act. Section 11(1)(a) of the Act provides that :
"Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person - who seeks the services of the agency to obtain employment with another person".
Caselaw on establishing a prima facie case of direct discrimination
5.4 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot
5.5 More recently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board  ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."2
The evidence in this case:
5.6 The facts in relation to how the complainant's applications were handled are not disputed between the parties. When the complainant submitted his CV to the respondent for the post of Senior Financial Accountant, he received an e-mail stating that he was "too senior for the role. They are pitching it at a recently qualified level with circa 2 years industry experience." On the second occasion when the complainant submitted his CV for the post of Senior Financial Analyst, he received a call, again stating that he was too senior and that the client was looking for a qualified accountant with 2-3 years post qualification experience. I note that the responses received by the complainant do not correspond with the advertisement for the post which states that the minimum experience required is 2-3 years. It gives no indication that the 2-3 years is an upper limit and suggests on the contrary that it is a minimum. At the hearing, the respondent clarified that the experience requirement was input as a minimum of 2-3 years as the design of the website did not allow the experience requirement to be input as a maximum. It appears, therefore, that the minimum experience stated in the advertisement in practice became a maximum thereby eliminating all those with more than 2 years experience.
5.7 The respondent in its submission dated 16 March 2004 stated that 'too senior' "referred to his years of post qualification experience..." and in its submission dated 21 April 2004 stated that it "in effect referred to the fact that he was over qualified for the role." The respondent's contention is therefore, that, it was referring to the complainant's post qualification experience and that the complainant was overqualified. I have considered the word 'senior' in both the Collins and Oxford dictionaries. In the Collins dictionary, 'senior' is defined, inter alia, as:
1. higher in rank or length of service
2. older in years: senior citizens
3. of or relating to adulthood, maturity or old age: senior privileges.
The Oxford Dictionary provides, inter alia, that 'senior' is:
1. More advanced in age, elder, older
2. Of higher standing or rank, of longer service or earlier origin
3. Suitable or reserved for senior students, staff, members, etc
4. Most advanced in age or standing, of longest service or earlier origin.
I have considered the various definitions and I do not consider that 'senior' can be equated with 'over qualified'. I consider that the statement to the complainant that he was 'too senior' could be interpreted as a reference to his age. I, therefore, find that the complainant has established a prima facie case of discrimination on the age ground. The respondent's contention is that 'senior' was a reference to the complainant's years of post qualification experience. I accept that 'senior' could have been a reference to the complainant's length of service as an accountant or higher rank based on his 'years of post qualification experience'. On that basis, I find that the respondent has rebutted the complainant's claim of discrimination and on the balance of probability, I find that the respondent did not directly discriminate against the complainant on the age ground.
5.8 Part IV of the Employment Equality Act, 1998, deals, inter alia, with indirect discrimination. Section 28 of the Act provides that C and D represent two persons who differ in relation to any of the eight grounds. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. In relation to the age ground, this means that a comparison may be made between two persons of different ages. Section 31 of the Act, prohibits indirect discrimination and section 31(1) provides that where a provision relating to employment applies to all employees or prospective employees and operates to the disadvantage of one person compared to another and in practice can be complied with by a substantially smaller proportion of employees or prospective employees of a particular category relative to persons of a different marital status, family status, disability, age etc. and cannot be justified as being reasonable in all the circumstances, it shall be regarded as indirect discrimination contrary to section 8 of the Act on whichever of the grounds is relevant. Section 31(3) provides that subsection (1) shall apply in relation to the provision of any services of an employment agency as are referred to in section 11(1).
5.9 As mentioned in paragraph 5.6 above, the minimum experience stated in the advertisement in practice became a maximum thereby eliminating all those with more than 2 years experience. The complainant submits that most accountants would qualify by their mid twenties, assuming a 4 year Commerce degree with three years of practicals and further exams. He submits that most qualified accountants with 2-3 years post qualification experience would be in their late twenties and that by seeking such candidates only, those who are aged 30 and over are automatically excluded which is discriminatory. In a supplementary submission received from the respondent in relation to the issue of indirect discrimination, it submitted that the requirement does not operate to the disadvantage of older applicants as it is a requirement unrelated to age. It further submits that there is nothing that prevents anyone of any age qualifying as a Chartered Accountant and thus gaining 2/3 years post qualification experience.
5.10 The complainant in this case did not adduce statistical evidence in support of his argument that the requirement of 2/3 years post qualification experience impacted adversely on those over 30 years. In the Labour Court case of NBK Designs Ltd v. Marie Inoue3, the Court noted that the "question of whether an expert tribunal (such as the Court) can reach conclusions by relying on the knowledge and experience of its members, without any evidence being adduced on the point," had not been previously considered by the Court but had been considered by the UK and Northern Ireland. The Labour Court quoted from Price v. Civil Service Commission4, Perera v. Civil Service Commission5 (which was subsequently adopted in Clymo v. Wainsword London Borough Council6) and Briggs v. North Eastern Education and Library Board7.
I refer to an extract from the Perera case quoted by the Labour Court which reads as follows:
"On the one hand, the burden is on the complainant to prove his case and, viewed in isolation, the statistics produced do not prove it. On the other hand it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in reparing and proving statistical evidence can be enormous, as experience in the United States had demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of Section 1(1)(b) are satisfied."
5.11 The Labour Court went on to hold in the Inoue case:
"It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of this Court by drawing on their own knowledge and experience. Whilst there are many cases in which the unequal effect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case."
Whilst the complainant in this case has not produced statistical evidence which stablises
the impact of the requirement on the different age groups, I do not consider that the unequal effect of the requirement of 2/3 years post qualification experience on those under 30 and over 30 can only be established by elaborate statistical evidence. I accept the respondent's contention that people of all ages may qualify as Chartered Accountants, however, I consider that a greater proportion of newly qualified accountants will be in the younger age category.
5.12 I will consider the requirement to have a maximum of 2 years experience in the context of section 31 of the Act and indirect discrimination. In this case, the requirement to have a maximum of 2 years post graduate experience applied to all prospective employees and operated to the disadvantage of the complainant who was in the over 30 group as compared with those under 30 and in practice could be complied with by a substantially smaller proportion of prospective employees who are in the over 30 group. The complainant has therefore established a prima facie case of indirect discrimination. My finding on this matter is supported by the respondent's statement at the hearing that someone aged 29 with 2 years post qualification experience was interviewed by the respondent's client in relation to the post of Senior Financial Analyst. I must now consider whether the respondent can rebut the complainant's claim and show that the requirement can be justified as being reasonable in all the circumstances of the case. The European Court of Justice has stated in relation to objective justification in a case concerning gender discrimination:
"It is necessary in that regard to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard, Case C-167/97 Seymour- Smith and Perez  ECR I-623, paragraph 72)."8
5.13 In the case of St James's Hospital v. Dr. Bennett Kim Heng Eng9, the Labour Court considered whether the standard of justification necessary to save an otherwise discriminatory term or criterion, under Section 29(4)(d) in relation to the non gender grounds is lower than that of objective justification required by Section 19(4)(d) in a case involving discrimination on the gender ground. The Court accepted that "by using different terminology in both sections the Oireachtas must have intended that a lower standard of justification would be required in cases of indirect discrimination on the non-gender grounds than that derived from the jurisprudence of the ECJ in cases involving gender equality. Nonetheless, the standard of justification required cannot be so low as to render the section ineffective or nugatory."
The Labour Court went on to hold that:
"The Act gives no guidance as to what factors are to be taken into account in applying this provision. It is thus a question of fact to be decided by the Court in each case applying ordinary objective standards of reasonableness to the factors put forward by the respondent as justification for the term or criterion in question. Further, it appears to the Court that the dominant purpose of the factors relied upon must relate to an objective which the employer is required to pursue or is reasonably entitled to pursue and they go no further than is reasonably necessary for the attainment of the objective."
5.14 In its supplementary submission, the respondent submitted that the companies which advertised the vacancies with the respondent indicated the vacancies were suited to individuals with 2/3 years post qualification experience. It submitted that the complainant has significantly more post qualification experience and was therefore advised that he was "too senior" for the role which in effect referred to the fact that he was over qualified for the role. It submitted that the requirement of 2/3 years post qualification experience was a genuine requirement for the vacancies for which the complainant applied and that specifying 2/3 years post qualification experience as a requirement is an accepted way of asking for a certain level of skill/experience. It further submitted that it was a genuine requirement for the vacancy and if candidates had in excess of 2/3 years post qualification experience, they would have developed their skill base beyond the level of the role whilst if they had less experience, they would not be experienced enough. I must therefore consider whether the requirement of a maximum of 2/3 years post qualification experience to achieve the aim of obtaining the appropriate skill base for the role is unrelated to any discrimination based on age.
5.15 It was unclear whether the respondent's statement in relation to the appropriate skill base was premised on the argument that someone with too much post qualification experience will be a poor performer as they are more than qualified for the job or that the job satisfaction of the employee will be reduced. At the hearing, the respondent clarified the matter somewhat and it submitted that a person with more than 2/3 years experience might be less satisfied in the job as they would have been involved at a higher level such as reviewing accounts rather than preparing them. At the hearing, the respondent referred to factors such as the requirement of 2-3 years experience providing someone with the right level of experience for the job, the person would have a career path in the organisation, the need to fit in with the team, the person who had in excess of 2/3 years experience outgrowing the role too quickly and having no learning curve as reasons for the requirement being an occupational qualification. The respondent also submitted that the complainant was capable of doing the job notwithstanding that he had more than 2 years post qualification experience
5.16 The European Court of Justice stated in a case concerning restricted access to a part-time working scheme to those who had worked full-time for a total of at least three of the preceding five years which predominantly affected females' access to the scheme:
"Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination on grounds of sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim (Kutz-Bauer, paragraph 57).10
Similarly, in this case mere generalisations concerning the requirement of 2/3 years post qualification experience equating with the skill level of the job is not sufficient to objectively justify the requirement. The respondent did not provide any clear objective evidence to substantiate its position and support the maximum experience requirement. I am not satisfied that the maximum experience requirement had any specific connection with the requirements of the post, in particular, as it was submitted by the respondent that someone with more than 2/3 years post qualification experience including the complainant would be capable of doing the job. The respondent has not shown that the requirement to have 2/3 years post qualification experience is unrelated to any discrimination based on age or provided evidence on the basis of which it could reasonably be considered that the requirement is or could be suitable for achieving the aim of providing the appropriate skill base and that the requirement is no more than is reasonably necessary for the attainment of that objective. I do not consider that the requirement can be justified as being reasonable in all the circumstances of the case. I therefore find that the respondent has not rebutted the complainant's claim of indirect discrimination and I find that the requirement of a maximum of 2/3 years post qualification experience indirectly discriminated against the complainant on the age ground.
5.17 On both occasions, the respondent placed an advertisement on the recruitment website, Irishjobs.ie. Section 10 of the Employment Equality Act, 1998 prohibits discriminatory advertising. Section 10(1) provides:
"A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which -
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention."
Section 10(2) provides:
"For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which -
(a) connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic, or
(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only be members of one sex or only by individuals having such a particular relevant characteristic,
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever discriminatory ground is relevant in the circumstances."
Section 85(1) provides, inter alia, that:
"Where it appears to the Authority -
(d) that a publication or display has been made in contravention of section 10, the Authority may refer the matter to the Director."
The issue of discriminatory advertising has been considered by the Tribunal in O' Connor v. GTS Reprographics11 and Burke v. FAS.12 The latter case considered the passage of the Employment Equality Bill, 1997 through the Oireachtas and a proposed amendment to allow individuals to refer cases of discriminatory advertising which was rejected. The Equality Officer in that case held it was clear that the intention of the legislature was that claims of discriminatory advertising may not be referred by individuals. My colleagues in both cases held that an individual cannot refer a complaint in relation to a discriminatory advertisement under section 77 of the Act and a referral may only be made by the Equality Authority under section 85 of the Act. I concur with my colleagues' findings in relation to the referral of a case of discriminatory advertising.
5.18 The respondent made available a copy of its Equal Opportunities Policy and I am not satisfied as to the adequacy of the policy which refers only to UK legislation and does not appear to have been drawn up for this jurisdiction. It does not contain any reference to either the family status ground or membership of the Traveller Community ground. I shall therefore make an order in relation to the drafting and communication of an Equality Policy which takes account of the provisions of the Employment Equality Act, 1998.
6.1 On the basis of the foregoing, I find that the respondent did not directly discriminate against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 contrary to the provisions of section 8 of the Act. However, I find that the respondent indirectly discriminated against the complainant on the age ground in terms of section 31 of the Act in contravention of section 8 of the Act in relation to his applications.
6.2 I hereby order that the respondent:
(i) pay to the complainant the sum of €10,000.00 compensation for the effects of the acts of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(ii) immediately draft an Equality Policy which takes account of the provisions of the Employment Equality Act, 1998 and effectively communicate the policy to all those potentially affected by it including management, employees, customers, clients and other business contacts.
30 June 2003
1 DEE011 15 February 2001
2 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
3 ED/02/34 Determination No. 0212 25 November 2002
4  IRLR 291
5  IRLR 147
6  IRLR 241
7  IRLR 181
8 Helga Kutz-Bauer v. Freie und Hansestadt Hamburg Case C-187/00 ECR 2003 Page I-02741
9 ADE/02/4 Determination No. 023 22 July 2002
10 Erica Steinicke v Bundesanstalt fur Arbeit Case C-77/02 11 September 2003 para 64