The Employment Equality Acts 1998 and 2004
Decision No: DEC-E2006-028
James Deeney -v- Francis Brophy & Company (represented by Gillece Callanan & Co, Solicitors)
1.1 The case concerns a claim by Mr. James Deeney that Francis Brophy & Company, Chartered Accountants directly and indirectly discriminated against him on the age grounds in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to sections 8 and 31 of the Acts.
2.1 The complainant submits that he was not shortlisted for interview for the position of Trainee Accountant because of his age. The job advertisement indicated that the post would suit a graduate or school leaver. He submits that he was directly discriminated against in the shortlisting process on the basis of his age and that the provision in the advertisement in relation to suiting a school leaver or graduate indirectly discriminated against him 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 16 November 2004. On 21 February 2006, 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 6 March 2006 and from the respondent on 24 April 2006. A joint hearing of the claim was held on 8 June 2006.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that he was refused access to the position of Trainee Accountant because of his age. He submits that on Friday, 31 October 2004, an advertisement was placed in the Irish Times inviting applications for the post of Trainee Accountant with the respondent. The job advertisement indicated that the post would suit a graduate or school leaver.
3.2 The complainant submits that he forwarded a detailed CV outlining his educational and career progression including the fact that he holds two university degrees, a certificate in public administration, a third of a medical degree from Trinity College as well as over 20 years experience at junior and middle management level in the Civil Service. His CV indicated that prior to joining the Civil Service, he held numerous jobs including one of trainee accountant and in 1980 had obtained an Honours Certificate in Advanced Bookkeeping from a business institute.
3.3 The respondent indicated specifically that the post would suit a graduate or school leaver. The respondent stated that five people were selected for interview and all were aged between 20 and 30 years of age. The respondent indicated by letter dated 15 November 2004 that it considered that the complainant was embarking on a career change which might not suit him.
3.4 The complainant submits that there was no evidence in the advertisement or in any correspondence from the respondent as to how they defined the criteria for the post. He submits that he was not given the opportunity to demonstrate his suitability for the post because he was not short listed for interview. He submits that he was discriminated against on the grounds of age rather than being assessed on the basis of his individual characteristics.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the reason that it specified school leaver or graduate is because these are the two main entry routes to the accountancy profession and he was actually stating that he was considering as wide a range as possible rather than a narrow group e.g. if he specified graduates only or school leavers only. The reason for the distinction in categories is because the length of the training period differs depending on which level one enters the profession at. All of the Irish Accountancy bodies have different training and education requirements for school leavers and graduates so it was important to state that he would take candidates from any route and not limit selection to one category.
4.2 The complainant states that the advertisement discouraged older people from applying which is not correct. Despite that statement by the complainant, he still applied for the job and his application was given the same consideration as the other fifty applicants.
4.3 The respondent submits that when it receives applications for a position, the CVs are assessed on the basis of the most relevant education and/or experience that the candidate has. It submits that it is its experience that somebody who has proved that they can do well in accountancy and business related subjects in either the Leaving Certificate or in College has a far better chance of succeeding as a trainee accountant than one who has good results in what it considers non relevant subject such as science, law, languages, medicine. The respondent would also consider whether a candidate has previous experience in an accountancy office such as summer work. This would be considered an advantage if it was coupled with a good relevant education performance.
4.4 All of the candidates short listed for interview had excellent educational performance in accountancy particularly and other business related subjects. There is a second category of candidates who have either average results at accountancy and business related subjects or good results in non related subjects. The third category refers to people who have not got good results in any category and therefore, the respondent would never consider them for a position. It is the case, therefore, that category one is short listed for interview, category two is used as a fallback and category three is completely dismissed.
4.5 The complainant was placed in category two because even though he had an excellent educational record, it was almost all in non relevant subjects. The respondent submits that this is not discrimination on age but merely an assessment on merits.
4.6 The respondent submits that it received fifty one applications for the position and short listed five. The reality is than while the complainant had a good CV, there were a sufficient number of candidates who were more suitable than him for the position advertised. It submits that there was no discrimination of any kind and that the contents of the advertisement placed and the selection procedures were fair and appropriate.
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 Acts 1998 and 2004 and in contravention of section 8 of the Acts. I must also consider whether the respondent indirectly discriminated against the complainant in terms of section 31 of the Acts 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 Acts 1998 and 2004 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"),
Caselaw on establishing a prima facie case of direct discrimination
5.3 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 succeed.
5.4 Subsequently, 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
More recently, the Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment:
"It is accepted that if the complainants make out a prima facie case of discrimination, the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court in Teresa Mitchell v Southern Health Board  ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent."3
5.5 The Labour Court stated in the case of Superquinn -v- Barbara Freeman4 that "The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination. The difference in age of three years, the complainant being 31 years old and the successful candidate being 28 years old, is not in the Court's view significant enough to establish a presumption of discrimination, in the absence of any other facts. While the application form for the position required the candidates age, which of itself is prohibited by the Employment Equality Act, 1998, no facts were presented by the complainant to substantiate the allegation that the company had treated her less favourably due to her age."
The respondent in this case in its written submission stated that it short listed candidates on the basis of suitability. It submitted that suitability is determined by (i) the minimum educational standard as determined by the accountancy bodies and (ii) the most relevant education in terms of those who have shown a good aptitude for accountancy and business related subjects. It submitted that consideration is not given to other factors such as age, gender, race or religion. The respondent short listed five people, two school leavers and three graduates. The ages of the candidates ranged from seventeen years to twenty two years. The comments in respect of the candidates short listed for interview range from "Good Leaving Certificate and seems keen; Good Degree in relevant subjects; Reasonable Degree in relevant subjects; Good Leaving Certificate in relevant subjects, Good IT experience; Reasonable degree in relevant subjects" The notes in respect of the complainant state "Excellent educational record but vast majority is not relevant". The respondent submitted that the complainant had, however, been awarded a Certificate in Advanced Bookkeeping in 1982.
5.6 At the hearing, the Principal of the respondent firm explained that if a candidate was a school leaver, they would get no exemptions in the accountancy exams and the period of training would be five years. A graduate on the other hand would get some exemptions from exams depending on the type of qualification and the period of training would be three years. He submitted that some accountancy firms only take graduates or school leavers and that by specifying school leaver or graduate, he was indicating that he would consider all candidates and it was the suitability of the candidate that mattered. He explained that in the shortlisting process, he first looked at the basic educational qualifications, i.e. Leaving Certificate or Degree. He would then split the candidates into categories. The first category would be candidates who were very strong in business related subjects specifically accountancy. The next category would be candidates who were reasonably strong in specific relevant subjects or very strong in unrelated subjects. The third category would be candidates who were not very strong in any category.
5.7 In the case in issue, candidates were short listed by reference to two criteria, relevant education and experience. The respondent did not use a formal marking system and award marks to the candidates when short listing them which would be more prudent in order to demonstrate transparency in the short listing process. Whilst the nature of the post in issue, trainee accountant is very specific, it may also have been appropriate to draw up a job and person specification. However, these factors in themselves are insufficient to establish a prima facie case of discrimination on the age ground and I find that the complainant has failed to establish a prima facie case of direct discrimination on the age ground.
5.8 Part IV of the Employment Equality Acts 1998 and 2004, deals, inter alia, with indirect discrimination. Section 28 of the Acts 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 provides that the provisions of section 22 shall apply in relation to indirect discrimination on all of the non gender grounds. Section 22(1) which deals with indirect discrimination on the gender ground provides:
(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender [marital status, family status etc.] at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to ..... unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
5.9 The complainant submitted that people over twenty five years old were disadvantaged by the provision in the advertisement for the position of Trainee Accountant. The respondent in its written submission submitted that the reason it stated that the position would suit a school leaver or graduate was because it was willing to take candidates from any route, either from school or college. It was submitted that this is relevant as the length and conditions of the training contract vary depending on the route that the candidate takes to train for an accountancy qualification. It further submitted that some firms are not willing to take students for a certain period of time thereby ruling out candidates in certain instances. The principal of the respondent firm also gave oral evidence in relation to these matters at the hearing of the claim (paragraph 5.6 above).
5.10 I have considered the meaning of 'graduate' in the Collins English Dictionary (Millennium Edition) and it states:
'a person who has been awarded a first degree from a university or college'.
The new shorter Oxford Dictionary states that graduate means
'A person holding a degree or other academic qualification'
A graduate refers to someone who has a degree or other academic qualification and can therefore be of any age.
'School-leaver' is defined in the New Shorter Oxford as:
'a child who is about to leave or has just left school' and in the Collins English Dictionary as a 'pupil who is about to leave or has recently left school'.
5.11 The respondent submitted that a candidate did not need to be a recent school leaver or recent graduate and that there was no disadvantage in having taken the relevant exams many years ago. It is certainly the case that school leaver as defined above is a term applied to a younger person, in all probability someone under 20 years of age. However, graduate is a term that can be applied to all age groups and a person who becomes a graduate at a younger age will always be a graduate. It is therefore, the case that the reference to 'school leaver or graduate' was capable of embracing a wide range of applicants in terms of age. Whilst the claimant could not be categorised as a school-leaver, he was considered under the graduate provision and in fact was placed in category two in the respondent's shortlist, i.e. candidates not shortlisted but may be suitable which the respondent submitted related to candidates who had either average results at accountancy and business related subjects or good results in non related subjects. The respondent further submitted that whilst the complainant had an excellent educational record; it was almost all in non relevant subjects. The complainant was considered in the selection process as a graduate as any graduate would be considered irrespective of age and I note that the notes made during the shortlisting process in respect of the complainant state "Graduate .... Excellent educational record, but vast majority is not relevant." The respondent submitted that there are currently ten employees of the respondent firm, nine of whom are accountants/trainee accountants and one administrative person and their ages range from 19 to 48. The specific ages of the staff were provided to me at the hearing and I note that 60% of the staff are in the over twenty five age group. I find that the provision in relation to the post suiting a school leaver or graduate in the advertisement for the post of trainee accountant did not put persons of a particular age (those over 25 years of age) including the complainant at a disadvantage.
5.12 Section 10 of the Employment Equality Acts 1998 and 2004 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 or refers to an individual of one sex or an individual having a characteristic mentioned in any of the discriminatory grounds (other than the gender ground), or
(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by the members of one sex or individuals having such a 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."
5.13 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 Reprographics5 and Burke v. FAS.6 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.
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 Acts 1998 and 2004 contrary to the provisions of section 8 of the Act. I also find that the respondent did not indirectly discriminate against the complainant on the age ground in terms of section 31 of the Acts in contravention of section 8 in relation to his application for a trainee accountant's post.
19 June 2006
1 DEE011 15 February 2001
2 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
3 Portroe Stevedores v. Nevins, Murphy, Flood EDA051 11 February 2005
4 AEE/02/8 Determination No. 0211