Co. Louth VEC
(represented by Ms C. Kimber, BL,
instructed by Arthur O'Hagan Solicitors)
Headnotes: Employment Equality Act 1998 - age and gender grounds - selection for promotion
On 13 July 2004 Mr Don Johnston referred a complaint against County Louth Vocational Education Committee on the grounds of age and gender contrary to the Employment Equality Act 1998. The complainant alleged that the respondent had directly discriminated against him when they failed to appoint him to a post of Assistant Principal in Bush Post-Primary School at an interview held on Thursday 12 February 2004 but appointed a younger female employee whom he considered less qualified. The respondent rejects the claim and states that the interviews were carried out in a fair and non-discriminatory manner and the appointment was on merit alone.
Submissions were received from both parties and a hearing of the claim was held on 19 September 2006. The deadline for receipt of final information from the parties expired on 12 October 2006.
Summary of complainant's submission:
Mr. Johnston was employed, from 1977 until his early retirement in August 2005, as a teacher of English and Geography in Bush Vocational School which is administered by Co. Louth VEC.
The principal reasons that the complainant considered he had suffered discrimination were:
- He was a member of the staff of Bush school which had prospered while the successful candidate was a member of a school which had closed down.
- He had 27 years service in the school compared to her 17 years.
- His qualifications were superior as he had an Honours MA while she did not.
- He had been performing the duties of a B post since 1990 while she had resigned her B duties post nearly 15 years previously.
- He had taken computer courses which she had not done.
- He was one of the teachers appointed to introduce the new Junior Certificate School programme in the school in 2001, whereas the successful candidate had not been on the team.
- He had published an article about his work in the class room and had co-written to an active learning Geography Resource book. As far as the complainant knew, the successful candidate had not published anything.
- At interview he had not been asked questions relevant to the duties of the AP post but was asked vague general questions.
In 2003/2004 the claimant said that symptoms of a serious illness began to appear and that he went on sick leave from October 2004 and took early retirement in August 2005.
In his submission, the complainant outlined for the benefit of the Tribunal a catalogue of interviews, starting in 1978, at which the successful appointee was female and/or younger than he and asked that these be taken into account.
Summary of the respondent's submission
The respondent's representatives confirmed that the interview for a temporary post of assistant principal took place in February 2004, at which the complainant was unsuccessful and another teacher from the school was appointed. The complainant was 56 and the successful candidate was 50.
The respondent argued that, as both candidates were in the same age bracket (50 and over) the provisions on age discrimination cannot apply. In addition the respondent stated that the material provided by the complainant in his submission relating to earlier incidents of alleged discrimination are outside the six month time limit for referral and presented a number of decisions/judgments in support of this position (1).
The respondent described the assessment procedure for the interview as clear and transparent, and pointed out that the interview board was independent of the school. They submitted that the interview was conducted in a thorough and proper manner, all candidates were treated equally, and every candidate was given a full opportunity to elaborate on relevant matters and bring matters to the attention of the interview board. They denied that the complainant was not asked relevant questions and not given a full opportunity to present his case. The selection board was constituted in line with the Departmental Circular (2), the responsibilities of board members were allocated at a pre-interview meeting questions, and the criteria laid down in the Departmental circular were strictly adhered to.
The respondent's representative stated that:
- The complainant's application form was shorter and more general than that of the appointee;
- The complainant had not taken up the opportunity to make a presentation, whereas the appointee had;
- The answers of the successful candidate were clear, focused, well thought out and detailed, while the complainant's answers were less well thought out and did not show the same ability, skill or insight into the demands of the post.
- The successful candidate displayed much greater management ability and gave a clear expansion of the detailed answers given in her application.
The respondent stated that, after the interview, the interview board discussed each candidate under various headings and entered an agreed mark, using an agreed scale, rather than averaging the marks from individual interviewers.
Conduct of the hearing
Additional evidence from the complainant:
The complainant confirmed that he had not included in his complaint form reference to any earlier alleged discrimination but that he had been informed that it was within the Tribunal's remit to look at earlier incidents. He pointed out that, with the exception of his appointment to a "B" post in 1990, he had been applying unsuccessfully for promotion for 24 years, and that in these competitions persons who were younger and/or female were succeeding.
The complainant at hearing elaborated on his submission, giving examples of his contribution to the school including getting an MA. He commented that the successful candidate had completed a typed application form and suggested that she must have been encouraged to do this, particularly as she had displayed no previous interest in IT. He did not offer any suggestion as to who might have encouraged her to do so. He said he had felt confined to the longhand version and that he would have submitted a better application if he had known he could have typed it. He also criticised the successful applicant's application form for a number of grammatical mistakes.
In relation to the conduct of the interview the complainant clarified that he had no issue with the composition of the Interview Board and he also described as "scrupulous" the care taken by the Board to avoid asking questions which might be construed as discriminatory. He maintained that the line of questioning had been vague and generalised, although he accepted that he was not aware whether this was different from questions put to other candidates. He had not taken up the opportunity to make a presentation as his only prepared presentation, on local history, would have taken up too much of the available time. When asked if he had considered making a presentation on aspects relevant to the post, he said that the application form had not made any suggestion as to what topic, making it difficult for him to decide on one, and he felt by the time he got going the 15 minutes allotted for interview would have been gone.
In relation to the marking procedures, the complainant considered they were very woolly and that awarding an overall agreed mark by consensus, rather than each board member's giving individual breakdown of marks by topic, showed lack of transparency.
He said that information in his application for early retirement should not have been used in this forum as the scheme specifically said that "information in the application form may not be used by management against the teacher..." He added that the Interview Board was not aware of the issues at the time.
Finally he strongly disputed that he had not demonstrated sufficient management experience and potential for appointment as Assistant Principal, listing a number of roles and tasks he had performed over the years without any complaint against him and pointing to new school projects and courses he had been active in introducing. He also said he had always viewed himself as approachable, instancing a number of times when he had gone out of his way to help parents or individual pupils.
Additional evidence from the respondent
Prior incidents of alleged discrimination: The respondent's representative cited a number of cases from the Tribunal, the Labour Court and the English and Welsh Court of Appeal to support her case that no chain of discrimination had been shown and therefore earlier claims were out of time.
The representative also argued that, while section 6(2)(f) of the Employment Equality Act 1998 defined the discriminatory grounds as between any two persons "they are of different ages" but argued that this must be interpreted sensibly and that any observer would consider that the relevant age was in the bracket 50 and over, rather than the difference between 56 and 50. Cases which had been decided to the contrary by the Tribunal had been limited to cases concerning a particular requirement by an employer e.g. to be over 60 (3) or by regard to date of birth (4).
Conduct of the interview
All three members of the Interview Board attended the hearing and were questioned separately about the procedure. Each confirmed that:
- They had agreed the line of questioning before the interviews, although they accepted the questions were not identical and had not been written down
- They had granted 18-20 minutes to each candidate
- Formal notes were not kept, and the individual jottings of Board members had not been retained
- Marks were allocated by consensus on the broad criteria.
- While the complainant had shown himself a good candidate, the successful candidate's interview performance had demonstrated greater capacity to meet the needs of the post and greater depth of experience. This was supported by a more detailed and focused application form from the successful candidate than from the complainant.
- The marking sheets showed the complainant and the successful candidate to have received very similar marks for their professional education, experience and school involvement, with only 1 mark difference, but that the successful candidate had performed exceptionally well on the criterion of "meeting the needs of the school", with a difference of 9 points out of 50, more than enough to compensate for the complainant's higher marks in relation to seniority.
Conclusions of the Director
Before assessing evidence in relation to the substantive complaint of discrimination, I considered it incumbent on me to give consideration to two preliminary issues.
First, I looked at the question of my jurisdiction to investigate the alleged incidents of discrimination on the age and/or gender grounds which occurred before the interview in question in February 2004. It is clear that, where a claimant has brought a claim involving a number of incidents, the Tribunal has power to investigate, or take into account, evidence in relation to earlier incidents in certain situations, to establish whether a chain of discrimination has been in existence, regardless of whether the earlier incidents are within the statutory period for referral - cf O'Mahony v Revenue Commissioners DEC-E2005-018. However, in this case, Mr. Johnston's complaint to the Tribunal on 13 July 2004 referred only to a single alleged incident of discrimination, the interview in February 2004. He did not raise any earlier incidents until his lengthy submission was received on 16 March 2006 and by that stage the earlier incidents were clearly well outside the 12 months' time limit for referral. Had Mr. Johnston raised earlier connected incidents in his original claim, there would have been an onus on me to investigate them. However this was not the case. I consider therefore that I do not have jurisdiction to investigate more than the single issue of alleged discrimination in February 2004. Furthermore I note that most of the allegations of age discrimination dated from before the coming into force of the Employment Equality Act in October 1999 and are not within my jurisdiction.
Secondly, as a further preliminary issue, I considered the arguments of the respondent's representative that I can only look at broad age brackets and that a difference of 6 years, between 56 and 50, cannot ground a complaint of age discrimination. I consider that the exact significance of any difference in age must be decided in each case on its merits but I cannot see any reason to confine it to broad age brackets. Age brackets are an entirely arbitrary construct, adopted usually for convenience. It would be equally valid, for instance, to consider the age brackets 45-54 and 55 +, or 45-49, 40-54, 55-59, etc., in which case the claimant and comparator would be in different age brackets. I cannot accept therefore the respondent's argument that the provisions on age discrimination do not apply when both parties are in the same age bracket.
The issue for decision by me therefore is whether or not the respondent discriminated against the complainant on the age and gender grounds when they did not appoint the complainant to a post of Assistant Principal on foot of an interview in February 2004.
The Labour Court said recently (5) "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts
In cases involving selection procedures, the Tribunal's function is not to re-run an interview or to substitute its view as to the relative suitability of the complainant and the successful candidate. In Dublin Institute of Technology and a Worker (6) , the Labour Court said "It is not the responsibility of the Equality Officer or of this court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the [protected ground] influenced the decision of the [interview] Board." In this case I am required to decide whether the age and/or gender grounds influenced the decision of the interview board in February 2004.
In relation to the selection process itself, I note that the complainant has no issue with the composition of the Interview Board or the type of questions asked, nor does he have an issue with the marks relating to seniority. The interview board members each individually gave evidence that the criteria used to assess candidates were those laid down by the Department of Education and Science, that the line of questioning had been decided in advance, albeit after consideration of the candidates' application forms, and that the marking had been carried out in accordance with the criteria. The complainant also acknowledged that the Interview Board had been scrupulous in avoiding any discriminatory questioning.
It was not disputed that the complainant has a higher educational qualification, holding an MA, while the successful candidate does not. A member of the interview board gave evidence that a mark was allocated to the complainant for this additional qualification and there was no evidence to the contrary.
It was also not disputed that the complainant has held a B post in the respondent school for 14 years, whereas the appointee had 10 years between two schools. I do not consider the four years' difference in experience as of sufficient significance to raise a presumption of discrimination.
As regards the relative quality of their experience, the interview board recognised that both candidates had been highly involved in school activities but considered that the successful candidate had had better experience overall. Taking qualifications into account, the interview board gave very similar marks to both - 17 out of 20 for the complainant, 18 for the successful candidate. I do not consider the difference is of sufficient significance to lead to an inference of discrimination.
Under the criterion of capacity to meet the needs of the school, the successful candidate scored 48 out of 50, while the complainant scored 39. The Interview Board members were unanimous in stating that the performance of the successful candidate was outstanding in relation to her capacity to meet, at management level, the needs of the school and their evidence was clear and consistent about the reasons for this assessment. They also stated that the successful candidate had made a convincing presentation while the complainant did not take up the opportunity to make one.
Overall, it is most unfortunate that the Interview Board's evidence is not supported by contemporaneous notes. The Tribunal and the Labour Court have been consistently critical in the past of the failure of interview boards to retain notes. Furthermore the practice of giving marks by consensus is less than ideal. However, I found the independent oral evidence of the board members to be credible and consistent and I consider that, given their evidence, the absence of notes is not fatal to the respondent's case.
I note that the successful candidate's application form, which was typed, gave more precise and detailed answers to questions on the requirements of the job than the complainant's. The complainant indicated that he had felt confined to handwritten answers by the format in which he had been given the application form but there is no evidence to support his suggestion that the successful candidate must have been coached by someone else to submit a more detailed typewritten form. On the contrary, evidence was given that it had been increasingly the custom over the last 10 years for candidates to scan in the form and type up the replies.
The respondent's representative included as part of their case certain evidence, which was not disputed, as to the reason for granting the complainant early retirement in 2005. I consider it would not be appropriate for me to take account of this evidence since the reasons were given at a later date and for entirely different purposes.
Overall, I do not consider that the complainant has established facts which are of sufficient significance to indicate that the assessment of the interview board was influenced by the age and gender of the complainant.
Decision of the Director
I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of age and gender and his claim therefore fails.
26 October 2006
(1) Hendricks v Commissioner of Police of he Metropolis ( EWCA Civ 1686), DEC/E2005/052, DEC/E2005/001, DEC/E2004/041, ADE/02/26.
(2) Members of the interview board were: Mr. Kinch, senior representative, Chair of the VEC and lecturer in Dundalk IT, Mr. Cooney, education expert, education officer with the VEC and a former principal of another school, and Ms Callaghan, personnel expert, personnel officer in the private sector.
(3) Perry v the Garda Commissioner, DEC-E2001-029
(4) Dunbar v Good Counsel College DEC-E2003-051
(5) A General Practitioner and A Worker - Determination No EED062