SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
NATIONAL CAR TESTING SERVICE LIMITED (NCTS)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Appeal under Section 83 of the Employment Equality Act, 1998 (Dec-E-2005-021).
2. A Labour Court hearing took place on the 15th November, 2005, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
This is an appeal under Section 83(2) of the Employment Equality Act, 1998 from a Decision of the Equality Officer (DEC-E-2005/021) that the Appellant had not been discriminated against on the grounds of his age in terms of Section 6(1) and 6(2)(f) of the Employment Equality Act, 1998, and in contravention of Section 8 of the Act.
In summary, the background to the dispute is that the Appellant claims that he was discriminated against on age grounds when his employment was terminated at the expiry of his training period for a position as a Vehicle Inspector with the Company.
Following an interview on 2nd June, 2003, the Appellant was successful in being appointed to the position as Vehicle Inspector on a one-year fixed term floater contract for non-core hours. A condition of his appointment was a requirement to participate in a three-week intensive training programme. He commenced the programme, along with 12 other new recruits, on 7th July, 2003, at the Company’s Test Centre in Dublin. His employment was terminated at the end of the training programme on 23rd July, 2003.
The Appellant was 52 years of age at the time.
The Appellant's Case:
For the following reasons the Appellant believes that his age had become the principal factor contributing to his failure to pass the training programme following the three- week training programme and in support of this contention he advances the following: -
- From the fourth day of the training course numerous remarks were made about the Appellant’s age by one member of the training personnel (herein referred to as Mr. X). He believed that Mr. X had treated him unfairly, asking him why he was limping like an old manand whether he needed new glasses, as he seemed to be having problems with his vision. He told the Court that Mr. X took a personal dislike to him and complained about everything he did.
- At the end of the training programme all other trainees were given a test on their ability and he was not.
- At the interview he enquired whether his age would be a problem and was told that it would not be as there were several other people employed who were older than him.
The Respondent's Case:
The Respondent rebutted the allegations made on the following basis: -
- At the end of week one of the training programme, on Friday 11th July, 2003, the Appellant was spoken to by one of the Technical Trainers regarding his capability at carrying out the testing required. He was warned that if his performance did not improve he would not be passed.
- In order to assist the Appellant to improve his performance he was offered extra training assistance on a one to one basis in the evening time. While he did not avail of the offer, a similar offer given to another recruit (aged 58 years) who was also experiencing difficulties, was availed of. That person successfully passed the training programme and continued to be employed.
- The Appellant was spoken to on several occasions by the trainers about his attitude, his timekeeping and his ability to carry out the test process correctly. Each time he was offered additional assistance in the evenings and was given one-to-one instruction on occasions.
- Details of an assessment carried out on 23rd July, 2003, the last working day of the training programme, used to determine his suitability for the position as Vehicle Inspector indicated that the Complainant did not pass the test due to his failure to correctly identify faults in the vehicle assessed and due to his incompetence in carrying out the procedures correctly and in the time allotted.
- The results were discussed with the Company’s Regional Manager who sought feedback from all other trainers involved and he received similar negative reports about the Appellant. All of the trainers involved had substantial experience in similar training programmes in the past and were well experienced in identifying those who were suitable and those who were not.
- The decision was taken by the Regional Manager to dismiss him on the grounds that despite every effort to assist him the Appellant was not suitable for the role as Vehicle Tester.
- In support of its contention that it does not discriminate against employees on the basis of their age, the Company supplied details to the Court of the ages of all employees employed in the Company. This showed that 96 out of a total of 413 (over 23%) employees are over the age of 50. The Company has been in operation since 2000. It also supplied details of the ages of the other recruits taken in at the same time as the Appellant and these ranged in age from 21 to 58 years of age.
It has been the established practice of this Court in relation to the burden of proof in non-gender discrimination complaints under the 1998 Act to shift the burden of proof where the complainant has established facts from which discrimination may be inferred, viz.O'Mahony -v- Revenue Commissioners Determination No:EDA033– it takes the view that in cases of alleged unlawful discrimination, a procedural rule similar to that prescribed by Directive 97/80/EC (The Burden of Proof Directive) should be applied.
Under this procedure, it is for the complainant in the first instance to establish as facts the assertions on which the complaint is based, and having thus established aprima faciecase of discrimination, the burden of proof rests with the respondent to demonstrate that discrimination did not take place. It is well established that in cases such as this, direct evidence of discrimination is unlikely to be available and, therefore, the law of evidence must be adapted to place the probative burden on the respondent in appropriate circumstances. The position in this regard as set down by this Court inSouthern Health Board v Mitchell  ELR 201: -
- "The complainant must prove on the balance of probabilities the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if those primary facts 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 Appellant bears the burden of establishing aprima faciacase from which discrimination can be inferred. The Respondent submits that the issues raised by him do not discharge the evidential burden by establishing aprima faciecase of discrimination.
The Court, having examined the written and oral information supplied by the parties, is not satisfied that a case has been made to substantiate a claim that the Company discriminated against the Appellant on age grounds as claimed.
The Court is influenced in this decision by the following factors:-
The Court notes that there were inconsistencies in the Appellant’s case. At the Equality Officer’s hearing, evidence was given that he made allegations against various members of management, whereas at the appeal hearing he confined his allegation to one particular member of the training staff, referred to as Mr. X above.
In support of his allegation of discrimination, the Appellant referred to alleged comments made by Mr. X that he was “limping like an old man” and asking him “whether he needed glasses to read the computer”. In his witness testimony to the Court, Mr. X disputed that such comments were made.
While such comments may in certain circumstances be sufficient to raise an inference of discrimination, the Court is not satisfied that the evidence supports the Appellant’s case that such comments were made by Mr. X.
Other than the alleged comments, the Appellant has not produced any other evidence to substantiate his claim of discrimination.
Having examined the age profile of all employees, the Court accepts as fact the figures, which show that 23% of all employees are over 50 years of age, ranging in age from 50 years of age up to 67 years. Data was also supplied to the Court which shows that 26% of Vehicle Inspectors are over 50 years of age. The Appellant did not dispute the accuracy of this information.
The Court notes that the only direct reference to the Appellant’s age was made by the Appellant himself when he asked at interview whether the Company would have any problem with employing someone of his age. This information was proffered by the Appellant himself. The Court is satisfied having examined the evidence that there was no obvious reason for asking this question. When questioned by the Court as to his reasons, he responded that it was his belief that some companies may have difficulties employing persons over fifty years of age to work alongside twenty year olds.The Courts notes that the Appellant made no complaint of discrimination to any member of management during the period of his employment.
All trainees were assessed at the termination of the training programme and an assessment form based on consistent criteria was completed in respect of each. Having examined the process involved in the training programme and listened to the witness testimony of all concerned, the Court is satisfied that the assessment process used was transparent and examinable and offered all appointees an equal opportunity to successfully complete the programme. Therefore, the Court is satisfied that the result was not tainted by discrimination.
The Court accepts as credible, witness testimony, which was supported by evidential proof, that the Appellant was assessed as being unsuitable for the position as Vehicle Inspector following an assessment process, carried out in the same manner for all trainees concerned.The Court is satisfied that the above matters do not raise a presumption of discrimination and are not sufficient to establish aprima faciecase of discrimination. Therefore, the Court concurs with the findings and Decision of the Equality Officer and disallows the appeal.Determination
The Court therefore finds that the Appellant was not discriminated against on the grounds of his age in breach of Section 6(1) and 6(2)(f) of the Employment Equality Act, 1998.
Signed on behalf of the Labour Court
16th December, 2005______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.