SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
GALWAY CITY PARTNERSHIP
(REPRESENTED BY RAY FLAHERTY)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal under Section 83 of the Employment Equality Act, 1998. DEC-E2006-040
2. The complainant appealed the Equality Officer's decision to the Labour Court on the 30th September, 2006, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 27th April, 2007, in Galway. The following is the Court's determination:
The Complainant, Ms Josephine O’Halloran, claims that she was discriminated against on grounds of her age in the filling of a post of mediator with the Galway City Partnership (the Respondent), in contravention of Section 8 of the Employment Equality Act, 1998, (the Act).
In her complaint, which was submitted to the Equality Tribunal in April, 2004, the complainant referred to the filling of a mediator post in March, 2002, and in April, 2004. In her submission to the Equality Tribunal, and in her appeal to the Court, the Complainant also complained of having suffered discrimination in a competition for a similar post in July, 2004.
At the commencement of the hearing of this appeal it was pointed out by the Court, and the parties accepted, that the filling of the post in 2002 occurred outside the six month time limit prescribed by Section 77 of the Act. Further, the filling of the mediator post in July, 2004, could not have been comprehended by the complaint made in April, 2004. Consequently, the only matter which the Court can consider is the filling of the disputed post in April, 2004.
Position of the parties
The Complainant’s case
At all times material to her complaint the Complainant was employed by the Respondent as an information officer. She holds third level qualifications in counselling and psychosexual therapy. When a similar post to that at issue was advertised by the Respondent in 1999 it was expressly stated in the advertisement that counselling skills, while not essential, were an advantage.
The Complainant contends that she had better qualifications and better experience than those of the successful candidate who was some twenty years her junior. She told the Court in evidence that she had experience of fulfilling a role similar to that required of a mediator in other organisations before being employed by the Respondent. The complainant also told the Court that she undertook the work of a mediator during absences of the permanent post holder.
The Respondent’s case
The Respondent denies that the complainant was more qualified than the successful candidate. It also denied that the Complainant had temporarily fulfilled the role of a mediator while employed by the Respondent. The Court was told that the post at issue was filled by internal competition. Only the Complainant and one other candidate were interviewed for the post. There was a three-person interview board appointed for this purpose.
The Chairperson of the interview board, Ms Elaine Harvey, told the Court in evidence that prior to the interviews the board met and agreed a list of criteria against which candidates would be assessed. This was reduced to writing and set out in the form of questions which to be put to the candidates. Each member of the interview board was then given a copy of the sheet containing these questions on which they recorded their impressions of the answers given by each candidate. The same set of questions were put to each of the candidates.
Ms. Harvey told the Court that it was the unanimous view of the selection board that while the Complainant had skills as a counsellor the qualities which they were seeking in a mediator was significantly different. The Court was told that the interview board decided that the other candidate was a better choice than the Complainant and offered her the post. The Court was also told that the age of candidates was not a factor which the boards considered relevant.
The Court also heard evidence from Mr. Des Mulligan who is a former co-ordinator of the Local Employment Services Network in Galway. This witness was involved in working with the Respondent in assisting clients find employment and had worked with the Complainant in that capacity. He told the Court that the functions undertaken by the Complainant were significantly different to those of a mediator. He did not accept that the Complainant had undertaken the duties of a mediator at the times claimed by her.
Section 85A of the Act, as amended by the Equality Act 2004, provides, in effect, that it is for the Complainant to prove facts from which it may be presumed that she suffered unlawful discrimination. It is only if such facts are proved that the onus of establishing the absence of discrimination shifts to the Respondent. If the Complainant fails to prove these primary facts her claim cannot succeed. The test for establishing if the probative burden has shifted is that formulated by this Court inMitchell v Southern Health Board ELR 201. In that regard the mere fact of a difference in age between the successful candidate and the Complainant, and a difference in treatment, in the sense that the younger candidate was appointed whereas the Complainant was not, is insufficient to shift the probative burden.
The Complainant relies on what she regards as her higher qualifications and better experience to raise an inference of discrimination. Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (seeWallace v. South Eastern Education and Library Board NI 38 ;  IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.
In this case the Court accepts the evidence of witnesses for the Respondent that the interview board were not seeking counselling skills as a criterion against which the selection was to be made. The Court is further satisfied that the criteria agreed upon by the interview board was applied consistently to both candidates.
On the evidence, the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. The Court has previously held that where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board (see the Determination of this Court inKathleen Moore-Walsh v Waterford Institute of Technology,Determination 042, issued on 15th January 2004).
On the evidence before it the Court can find nothing to indicate any element of irregularity or unfairness in the selection process as it was applied to the Complainant. Nor is there any discernible connection between the Complainant’s age and the decision of the Respondent not to offer her the disputed post.
In these circumstance the Court must conclude that the Complainant has failed to establish facts from which discrimination could be inferred. Accordingly, she cannot succeed.
The decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
18th May, 2007______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.