SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
LIMERICK CITY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD)
- AND -
(REPRESENTED BY CONNOLLY SELLOR'S GERAGHTY)
Chairman: Mr Flood
Employer Member: Mr Grier
Worker Member: Mr. Somers
1. Appeal under Section 83 of The Employment Equality Act, 1998 Dec-E2003-032.
2. The Labour Court investigated the matter on the 18th and 19th March, 2004. The Court's Determination is as follows:
This is an appeal under Section 83(2) of the Employment Equality Act 1998 from a decision of the Equality Officer (DEC-E2003/032) that the appellant had not been discriminated against on the grounds of age in terms of Section 6(1) and 6(2)(f) of the Employment Equality Act, 1998.
The appellant claims that he was discriminated against on age grounds in regards to a promotion he sought as Station Officer in the Fire Service. He claims that he was more qualified and more experienced than the person appointed to the post.
The Appellant's Case:
The appellant’s case is that he was discriminated against on the basis of age by his non-appointment to the post of Station Officer. He claims that his competence and experience was far ahead of the successful candidate for the post.
- The existence of a Panel was not revealed to him until September 2001.
- He further claimed that two younger candidates were appointed to the two posts despite having less technical experience, training and command experience than the appellant.
- Notes from the interview panel were allowed to be destroyed despite the specific requests for them during the 9-month period and despite the fact that the Corporation was on notice of a claim before the Equality Tribunal.
- No formal marking scheme was in place at the interview.
- Inaccurate and unreliable information had been supplied to the Equality Officer.
- Appellants request for information was stonewalled.
- He was forced to seek documents under the Freedom of Information Act.
- He claimed that a policy was in place of appointing younger officers to be Station Officers and produced statistics to show that the successful appointees were considerably younger than previous incumbents.
The appellant challenged the marks awarded to him by the Interview Board and claimed that the successful candidate had their marks “artificially inflated” thereby undermining the interview process.
He submitted that he was clearly more qualified for the job on the basis of training, qualifications and experience as detailed in his C.V. This he claimed, coupled with the significant age difference could and did give rise to a separate and distinct inference of discrimination.
He further argued that the Interview Board had been convened to achieve a premeditated outcome and that central to their selection of candidates, was discrimination against older candidates.
Specific allegations were made by the appellant in relation to the conduct of the interview and the Corporations actions post the competition.
The above facts he claimed coupled with the significant age difference, gave rise to an inference of discrimination. He further claimed that following the principles laid down by this Court in previous cases, once this inference is established, the onus switches to the respondent to prove that they did not discriminate.
The Respondents Case:
The respondents stated that the Interview Board were completely satisfied that no discriminatory practice took place at the interviews or in relation to its deliberations. The Board had a clear recollection of the interview in question and could remember each candidate individually and were very au fait with the requirements of the interview process.
The respondents had not requested the interview notes from the Interview Board at the time of the interviews and none were received. As they received notice of a complaint of discrimination made to the Equality Tribunal that was outside the 6 months period from the date of interview for referring a claim under the legislation, the respondents did not consider asking the Board for its notes.
The appellant had not produced any evidence of any impropriety on behalf of the Interview Board in relation to the conduct of the interview. He had produced no evidence to support his allegation that the line of questioning was aimed at not appointing him because of his age, something that is denied and without foundation.
In relation to the appellant's claim that he was clearly more qualified on the basis of training qualifications and experience it was pointed out that the categories of “education, technical competencies etc only made up 43% of the marks”. There were “four other categories examined and the interviewer gave greater focus to these four issues, which made up 57% of the marks”.
The respondent rejects and objects to the appellant’s description of the interview process as furtive. The process is open and fair and offers all candidates an equal opportunity to compete for positions.
The allegation that the Interview Board was convened to achieve a premeditated outcome is refuted by the respondents who note that the appellant was unable to produce “any evidence to support this outrageous allegation”.
The respondents refute the allegations that there was a secret panel. What happened was normal practice within Local Authorities.
It was submitted by the respondent that it was illogical and irrational for the Equality Officer to suggest that the act of discrimination took place some timeafterthe interview and after the panelling of the successful candidates. The application was lodged out of time and the Equality Officer did not have jurisdiction to hear the matter.
At no time in the case has the appellant ever adduced evidence of any treatment of him that was based on age. The only relevant evidence appears to be that fact that persons of different ages were panelled for a position for which he applied.
The respondent submits that the issues raised by the appellant do not discharge the evidential burden by establishing a prima facie case of discrimination.
The Equality Officer found that his original claim of discrimination on age grounds, in respect of the person appointed to a post in April 2001, was outside the time limit laid down in Section 77(5) of the Employment Equality Act, 1998. The Equality Officer subsequently refused an application for an extension of the time limit under Section 77(6) of the Act.
However the Equality Officer held that the appellant had a reasonable expectation that he could have applied for the next vacancy in January 2002, before he was informed that a panel had been set up on which he was placed 3rd following the April 2001 competition.
The Equality Officer as a result allowed a claim of discrimination in respect of age, to proceed in relation to the appointment of the candidate placed 2nd on the panel to a post in January 2002.
In the circumstances, in the interest of natural justice and fairness “the Equality Officer decided that the appellant could pursue his claim of alleged discrimination on grounds of age in respect of the appointment of the second person on the panel to the next vacancy in January 2002”.
The Court supports this decision.
The appellant has expressed dissatisfaction with the interview process and alleged that the successful candidates were selected before the interviews took place. He claimed that the fact that there was no open objective marking system supported his belief.
He was dissatisfied with the questions asked and felt that he was given no opportunity to expand on or demonstrate on his knowledge, experience, leadership skills and adaptability.
The panel members in evidence to the Court made a major play of “performance at interview” and made the point that they were looking for a clear demonstration by candidates of an ability to use their experience in the new post.
The Court was told by the Interview Board members that the 1st and 2nd candidates had prepared better for the interview and they demonstrated a greater hunger for the job.
The Court having examined the written and oral information supplied by the parties, while taking different views on some of the markings is not satisfied that a case has been made to substantiate a claim that the panel discriminated against the claimant on age grounds as claimed.
However, the Court in considering this case must also examine the actions of the Corporation when making the January 2002 appointment.
Respondent’ Actions Post Competition
A number of actions by the respondent post the competition would in the view of the Court raise an inference of discrimination.
The respondents did not request the Interview Panel to retain their notes despite the fact that throughout the summer of 2001 there was communications between the appellant and the respondent in relation to his dissatisfaction over not being appointed to the Station Officer Post.
The respondent allowed the notes to be destroyed despite the fact that there was a request under the Freedom of Information Act for information in August 2001, well within the 9 months period for the retention of notes.
They were also under notice of a complaint of discrimination to the Equality Tribunal made in November 2001. They stated to the Court that as this was outside the six-month period for referring a claim, and as they were not aware of any exceptional circumstances to warrant an extension they did not seek the Panel notes.
The appellant was put through the most frustrating procedures to get basic information even to the extent of having to go through the Freedom of Information Route. The Court is not satisfied with the explanations given for this procedure by the Respondent.
3.Appointment in January 2002
The respondent used the list of those qualified in the April 2001 competition as a panel thereby preventing the appellant from applying for the January 2002 vacancies.
The respondents appointed the 2nd person on the list from the April 2001 Competition to the post that became vacant in January 2002 despite a request from the Union to postpone the decision while the matter was being discussed. The Court finds it difficult to understand why this appointment could not have been held, given that the successful candidate had not been told he was 2nd on a panel.
The Court and the Equality Officer were told that the appointment of the 2nd placed candidate to the January 2002 vacancy was based on legal advice that it received “that it was obliged to appoint the second placed candidate to the vacant position.”
The Court could not understand this advice given that the 2nd placed candidate had no knowledge that he was 2nd on a panel.
The Court sought a written explanation of this legal advice but subsequently were informed by the respondents that the City Solicitor had indicated that he had no recollection of giving such advice.
The appellant bears the burden of establishing a prima facia case from which discrimination can be inferred. The Court is satisfied that the above matters taken together are of such significance as to raise a presumption of discrimination and that the claimant has established a prima facia case of discrimination. Accordingly the onus must switch to the respondent to rebut this inference.
The respondent has put forward a number of arguments refuting the appellant’s claims, including that the Interview Panel and the process were fair and professional and that the appointment in January 2002 was made on legal advice.
The Court based on the information before it is of the view that the respondents have not rebutted the inference of discrimination. The Court is influenced in this decision by the following factors:
•The difference in age - which the Court believes to be significant.
•The decision to allow the interview notes to be destroyed, - a practice strongly condemned by the Court on a number of occasions.
•The decision to set up a panel which was kept secret from all the applicants, which allowed the appointment of the two youngest applicants.
The Court therefore finds the appellant was discriminated against on the grounds of his age in breach of Section 6(1) and 6(2)(f) of the Employment Equality Act, 1998. The Court recommends that the appellant be paid the appropriate rate for the Station Officer’s post until a post commensurate with his salary becomes available.
Signed on behalf of the Labour Court
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.