Ms Olive Flanagan(Represented by IMPACT) vs Dublin City Council(Represented by BCM Hanby Wallace, Solicitors)
The dispute concerns a complaint that the Dublin City Council (the Council)
discriminated against the complainant on the grounds of her age contrary to the provisions of the Employment Equality Act, 1998 in the conduct of a promotion competition from Local Authority Grade 5 to Grade 6.
2.1 The complainant is employed as a Staff Officer, Grade 5 at Dublin City Council. The Council advertised a competition to fill vacancies at Grade 6 level and the complainant was an unsuccessful candidate in the competition. The complainant, having attended a pre-retirement course three days before her interview, believes that her age had become a negative factor in the eyes of the interview board and that she was discriminated against on the grounds of age. The complainant will reach the retirement age of 65 on 25th May, 2005 and staff are normally invited to attend the pre-retirement course three years before retirement.
2.2 IMPACT referred a complaint to the Director on behalf of the complainant on 8th July, 2002. The parties attempted to resolve the dispute through mediation however an Equality Mediation Officer issued a notice to the parties on 27th November, 2002 stating that in his opinion the matter could not be resolved through mediation. On 12th December, 2002 the complainant requested that the complaint be referred for investigation and the Director, on 11th February, 2003, in accordance with her powers under section 75 of the 1998 Act delegated the case to Raymund Walsh, 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. Submissions were sought from both parties and a hearing of the complaint was held on 3rd February, 2004.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant states that she has a total of 42 years exemplary service with the Council, 35 of which were at her present Grade 5 level. The complainant was invited to attend a pre-retirement course being run by the Council on 4th and 5th March, 2002. As part of the Better Local Government (BLG) programme, the Council advertised promotional posts at Grade 6 level and the complainant applied and was invited to attend for interview on 8th March, 2002. She was concerned that her attendance at the pre-retirement course would send "the wrong message" to the selection panel and she spoke to the Head of Training about these concerns and suggested postponing the course. The complainant states that the Head of Training advised against postponement stating that "nobody on the interview board would know". The complainant attended the pre-retirement course. On the day of the interview it transpired that a member of the panel was unable to attend and the Head of Training took his place.
3.2 The complainant states that her interview was going quite well until the last of the three interviewers i.e. the Head of Training, asked her "how would you like to be remembered". The complainant describes the question as ageist and states that her performance for the remainder of the interview was impeded. The complainant states that the chairperson of the interview board was visibly surprised by the question. The complainant states that her stress and discomfort were exacerbated by the nature of the conversation which she had with the Head of Training prior to the interview. The complainant believed at that stage that she had been "written off" and states that some successful candidates to whom she spoke were asked "which department would you like to work in if successful".
3.3 The complainant states that she was placed 77th on the list of candidates interviewed and that the candidate placed 75th was appointed. The complainant refers to what she regards as inconsistencies in the marks awarded to her under various competencies i.e. a 'good' commendation attracted a mark of 70 in relation to three competencies while in the fourth competency it only attracted a mark of 65. In one competency a 'very good' commendation attracted a mark of 72. Given the margin by which the complainant was unsuccessful the complainant believes that the marks awarded are crucial.
3.4 The complainant contends that there is prima facie evidence of discrimination on the age ground and seeks redress by appointment to the grade of Senior Staff Officer Grade 6 and the payment of compensation for distress suffered.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant has failed to adduce prima facie evidence that she was discriminated against on the ground of her age and suggests that it has furnished convincing evidence to the contrary. The respondent also argues that the statutory provisions1 in relation to the burden of proof (since amended) apply only to complaints on the gender ground and that it is not open to the Equality Officers to shift the burden of proof to the respondent in an age discrimination complaint. The respondent states that in order to succeed the complainant must demonstrate less favorable treatment and that such treatment arises from her age and refers to the Labour Court in A Worker v Mid Western Health Board2. The respondent states that the onus is on the complainant to establish prima facie evidence of discrimination and refers in this regard to Dr Teresa Mitchell v Southern Health Board (Cork University Hospital)3 and Board of Management of St Fergal's National School Bray v Ms Ann Lacey 4. The respondent also states that it is not the responsibility of the Equality Officer to decide who is the most meritorious candidate for the position and refers to Dublin Institute of Technology v A Worker,5 in this regard.
4.2 The respondent submits that the alleged discriminatory question i.e. "How would you like to be remembered" was not asked and states that if it were asked it is not an ageist question as alleged and that the complainant could not succeed in a complaint of age discrimination or be appointed to the Grade 6 post on that account. The respondent refers to Hughes v Aer Lingus6 in this regard. The respondent also refers to McCormick v Dublin Port Company7. The Head of Training stated that he couldn't specifically recall the words used in his final question to the complainant but he generally tended to ask candidates to give the highlights of their achievements over the last six months. He would not use the words attributed to him by the complainant. The respondent rejects the complainant's contention that the chairperson of the interview board showed surprise at the question or that the complainant herself showed any discomfort at the question.
4.3 The respondent furnished details of the age profile of applicants and successful candidates and an analysis of this information is referred to at paragraph 5.4 below. The respondent also furnished details of the briefing notes for interview boards which are referred to further at paragraph 5.5 below. The respondent rejects the suggestion that because the Head of Training was aware of the complainant's attendance at a pre-retirement course this information was communicated to other members of the
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the grounds of her age in terms of Section 6(2) of the Employment Equality Act, 1998 contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 The principle of burden of proof as set out in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001) is well established in equality caselaw in relation to gender complaints and has been similarly applied by Equality Officers in non-gender complaints. The Labour Court in Flexo Computer Stationery Ltd v Kevin Coulter in relation to the burden of proof in non-gender cases stated :
"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 (SI 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  ELR 201. 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 the two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."
I am satisfied that it is for the complainant in the first instance to establish prima facie evidence from which it may be presumed that discrimination has taken place.
5.3 When questioned at the hearing about her career at Dublin City Council and in particular why she had applied for promotion on this occasion the complainant explained that the competition arose from the Better Local Government programme which provided for upgrading of many lower grade staff, subject to a competitive interview. She described an air of excitement in the Council about the changes and a 'frenzy' of promotions, and like everyone else, 'she wanted to be part of it'. While describing herself as perhaps 'not the sharpest knife in the drawer', she said that she 'could hold her own'. This was said in response to a suggestion by the respondent that she had said that all she had to offer over the 'the young brainy people' was her many years of experience. The complainant stated that she was enthusiastic about the possibility of an upgrade and was looking forward to the challenge that it would bring. As regards not having previously applied for promotion, she said that her generation tended not to seek promotion, particularly women.
5.4 Three interview panels were established to interview the large number of candidates. I have examined the profile of successful candidates from the various panels and I have concluded that the panels were evenly balanced in terms of the success rate from each panel and that older candidates generally did well across the board. There was no evidence that the outcome of the complainant's panel was skewed in any sense or that older candidates were less successful from that panel nor had IMPACT made any argument in this regard. A total of 222 candidates applied for the competition of whom 202 were interviewed. The respondent furnished detailed marks for the 202 interviewees along with an age profile of applicants and successful candidates. The overall success rate at interview was 36.6% i.e. 74 out of 202 candidates who attended for interview were successful. The chart at Appendix 1 shows the age profile for 218 applicants (4 dates of birth not supplied) and 73 successful candidates (1 date of birth not supplied) grouped in five year age bands. I note that four of the eight candidates over 55 years of age were successful however the only candidate (whose age was known) over 60 was unsuccessful.
5.5 I note the respondent's argument that the offending question, if asked, was in the complainant's own words, asked at the end of the last interviewer's questions and could not therefore be said to have had a significant effect on her performance as a whole at interview. Included in material supplied by the respondent was a sample list of competency based questions from which interviewers could draw. The last question of 19 sample questions under the heading 'Leadership and Initiative' reads 'if you left your current position tomorrow, what changes would you be remembered for'. This question bears a close relationship to the question which the complainant states she was asked however it is quite clear from the context that such a question could be put to any candidate without inferring an age bias. I note from the briefing notes for interview boards supplied by the respondent that specific reference is made to the Employment Equality Act, 1998 and to the various discriminatory grounds under that act, including the age ground and the requirement to treat all applicants equally. The document states :
"The selection process is designed to afford all candidates with an equal opportunity of success. There should be no bias against candidates during the selection process. Interviewers should not make assumptions about the suitability of individuals forcertain types of work e.g. on the grounds of disability, age etc.".
I note also that the Head of Training, who is alleged to have asked the question, has himself provided training in this area. I understand how a question such as the above could, in the pressure of an interview situation, give rise to concern among older candidates and the context in which any such question is asked should be set out clearly to allay any fears. I am however satisfied that in the present case the question asked was not discriminatory and that there is no evidence that the complainant's age was viewed negatively by the interview board. This is borne out by the overall performance of older candidates in the competition. When questioned at the hearing, the complainant stated that she had no evidence that she was better qualified for the disputed posts than any of the successful candidates. I am satisfied on balance that the complainant has failed to establish prima facie evidence of discrimination on the age ground sufficient to shift the burden of proof to the respondent
6.1 On the basis of the foregoing, I find that Dublin City Council Ltd did not discriminate against the complainant on the grounds of her age in terms of Section 6(2) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act in the conduct of a competition to fill positions at Local Authority Grade 6.
12 October, 2004
1 1European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (S.I. No. 337 of 2001)
2 2A Worker v Mid Western Health Board, Labour Court (1996) ELR 1
3 3Dr Teresa Mitchell v Southern Health Board (Cork University Hospital) DEE 011
4 4Board of Management of St Fergals National School Bray v Ms Ann Lacey (Labour Court) EE 2/1987
5 5Dublin Institute of Technology v A Worker, Labour Court DEE 994
6 6Hughes v Aer Lingus, DEC-E-2002-049
7 7McCormick v Dublin Port Company, DEC-E2002-046