INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
(REPRESENTED BY SHERWIN O'RIORDAN SOLICITORS)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal under Section 83 of The Employment Equality Act, 1998 against the Decision of the Director of Equality Investigations DEC-E-2007-037.
2. A Labour Court hearing took place in accordance with Section 83 of the Employment Equality Act, 1998, on the 5th February, 2008. The following is the Labour Court's Determination:-
This is an appeal by Mr Michael Scanlon against the decision of the Equality Tribunal in a complaint that Rescon Ltd discriminated against him on the gender and the age ground in contravention of the Employment Equality Acts 1998 and 2004 (the Act).
In line with the normal practice of the Court the parties are referred to in this Determination using the designation prescribed by s77(4) of the Act. Hence, Mr Scanlon is referred to as the Complainant and Rescon Limited is referred to as the Respondent.
The circumstances giving rise to the complaint are as follows: -
The Complainant applied for a position as a Senior Bookkeeper with the Respondent. The position had been advertised in the public press. At the material time the Complainant was 54 years of age. The Complainant was not appointed to the post for which he had applied. Instead a younger female candidate was appointed.
The Complainant formed the view that he had been discriminated against on grounds of gender and age. He presented a complaint to the Equality Tribunal pursuant to s 77 of the Act claiming redress for unlawful discrimination. The complaint was investigated by an Equality Officer who held against the Complainant. The Complainant appealed to this Court.
The Complainant’s evidence.
The Complainant told the Court in evidence that on or about 5th February 2005 he saw an advertisement for a Senior Bookkeeper with the Respondent. The post carried a salary of €35,000 p.a. He applied for the post and forwarded his C.V. to Ms Bronagh Dorian on 11th February 2005. The Complainant was subsequently invited to interview with Ms Nessa Butler.
The Complainant told the Court that when he attended for interview he was greeted by Ms Butler who wished him a happy birthday. He had turned 54 eleven days previously. This, the Complainant said, indicated that the interviewer was focused on his age. According to the Complainant the interview went well from his perspective. He was told the requirements for the job and was able to confirm that he could meet them. At the close of the interview Ms Butler asked the Complainant if he had any questions. He asked what computer software was used by the Respondent but Ms Butler was unable to answer that question.
The Complainant said that on 3rd March 2005 he received a telephone call from Ms Dorian who asked him if he was still interested in the position. He replied in the affirmative. Ms Dorian said that a decision had not been made in relation to the post and asked the Complainant what mode of communication should be used to contact him when a decision was taken. He asked to be contacted by e-mail, post or telephone.
Subsequently the Complainant received an e-mail from Ms Dorian informing him that his application was unsuccessful. This e-mail stated that the Respondent had decided to downgrade the position to that of Accounts Assistant for which, Ms Dorian said, the Complainant was overqualified. The Complainant told the Court that, contrary to what had been asserted by the Respondent before the Equality Tribunal, he had not been called to a second interview in relation to the post.
The Complainant gave evidence that on 4th March 2005 another advertisement appeared in the Irish Times by which the Respondent sought applications for the post of Accounts Assistant. This advertisement offered a salary of €40,000 p.a. A third advertisement appeared for the same post in July 2005. This advertisement offered a salary of
€35,000 p.a. for a Senior Bookkeeper.
The Complainant pointed out that the advertisement of February 2005 and that posted in March 2005 referred to the provision of opportunities for further education being a possible benefit of the Job.
Summary of the Complainant’s case
It is the Complainant’s case that in wishing him a happy birthday when he attended for interview Ms Butler displayed a consciousness of his age. He further submitted that the Respondent’s reference to him as being too experienced is synonymous with being too old. The Complainant further contends that the reference to the possibility of further educational opportunities indicated that the Respondent anticipated appointing a younger person. In advancing his complaint on the gender ground the Complainant pointed out that the successful candidate was a woman and that when the post was filled a second time in July 2005 a woman was also appointed.
The Respondent’s case.
Ms Nessa Butler gave evidence before the Court. This witness is the Managing Director of the Respondent and held that position at the time material to this complaint. She told the Court that the Respondent is a recruitment specialist involved in recruiting IT and administrative staff for clients. It is a small Company employing some 15 people.
The witness told the Court that in or about January 2005 the Financial Controller of the Respondent resigned. He was due to leave at the end of February of that year. The Respondent decided to outsource the financial control aspects of this job and to recruit a bookkeeper to deal with internal accounts. Ms Butler told the Court that there was a certain urgency in filling the post as she wanted the new appointee to work alongside the retiring financial controller for a at least one day before his departure.
It was Ms Butlers evidence that bookkeepers were difficult to recruit at the time and it had been decided to advertise the post using a number of different descriptions. Hence the post was variously described as a Senior Bookkeeper, an Accounts Assistant and Accounts Clerk. The Court was told, however, that all of these descriptions related to the same job.
The witness told the Court that eight applications were received for the post. Ms Bronagh Dorian who, at the time, was a trainee recruiter initially screened applications. Ms Dorian examined the CVs of candidates and spoke to them by telephone. Of the initial eight applicants five were invited to interview, including the Complainant. The witness conducted the interviews.
Ms Butler said that no particular criteria were set down against which candidates would be judged other than relevant experience and an ability to do the job. She said that at the commencement of each interview she tried to put candidates at ease and lead them through their CV. The witness accepted that she had wished the Complainant a happy birthday said that she did so as a gesture of conviviality.
The witness told the Court that the Complainant was a good candidate. She was, however, particularly impressed by the experience of the successful candidate. That candidate was part of the management team in a Company of the same size and in a similar line of business as the Respondent. This candidate also had experience of working in areas other than accounts. The witness formed the view that she would be a particularly valuable asset to the Respondent. The Court was told that on that basis alone it was decided to offer this woman the post. She was 44 years of age.
The successful candidate was given a formal job offer by letter dated 4th March 2005. She commenced employment in or about the second week in March 2005. She subsequently resigned in July 2005 and the post was again advertised.
The witness told the Court that the post had not been downgraded from that advertised and, contrary to what was said by Ms Dorian, the Complainant had not been rejected because he was too experienced for the job.
The Court was provided with the age profile of each of the eight applicants for the disputed post.
Evidence of Ms Bronagh Dorian
This witness was employed by the Respondent as a trainee recruiter at the material time. She told the Court that her role in the selection process was to screen candidates to see if they had the necessary experience for the post. She reported to Ms Butler. She told the Court that she had limited recollection of the events surrounding the impugned selection process. She prepared a document, which was put in evidence, in or about July 2005 which set out the details of her involvement with the Complainant. This document recorded that the Complainant had met with the witness on 15th February 2005. The witness accepted that this was incorrect and that she in fact spoke to the Complainant by telephone on that date.
The witness recalled writing to the Complainant by e-mail on 3rd March 2005 advising him that his application was unsuccessful. She told him that the job had been downgraded and that he was too experienced for the post. The witness thought that she had been told by Ms Butler that the job had been downgraded but was not sure on that point. The witness accepted that she should not have told the Complainant that he was too experienced for the post. This was not a reason conveyed to her for not appointing the Complainant and she did not recall exactly why she had included it in the e-mail. She thought that it may have been to ease his disappointment.
The law applicable
Section 85A(1) of the Act provides as follows in relation to the burden of proof in equality cases: -
- Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
In this case the Complainant has adduced no evidence to establish a nexus between his gender and the Respondent’s failure to offer him the disputed post other than that a woman was appointed and he was not. In the Court’s view a mere difference in gender and a difference in treatment (in the sense that the Comparator was appointed and the Complainant was not) could never in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination (see the recent decision of the Court of Appeal of England and Wales on this point inMadarassy v Nomura International Plc IRLR 246, at par 54)
In relation to his complaint on the age ground, the Complainant essentially relies on three acknowledged facts in seeking to establish the existence of unlawful discrimination. They are: -
�The fact that Ms Butler wished him a happy birthday at the start of his interview;
�The fact that Ms Dorian told him that he was considered too experienced for the post;
�The fact that the job advertisement specified that additional educational opportunities would be made available.
The Court has considered if these primary facts are of sufficient significance to raise a presumption that the Complainant was discriminated on grounds of this age. In so doing it has taken account of the evidence as a whole so as to place the said facts in their proper context.
Ms Butler told the Court that she made the remark which the Complainant found objectionable so as to introduce a degree of informality into the interview. The Complainant believes that the true import of the remark was that Ms Butler was focused on his age. Having heard Ms Butlers explanation for the remark, and taking account of the context in which it was made, the Court does not accept that it should be ascribed any pejorative or discriminatory connotation.
The content of the e-mail sent by Ms Dorian is somewhat more problematic. For an employer to tell a candidate for employment that they are too experienced could be construed as meaning that a younger person was required. However the evidence disclosed that Ms Dorian was not involved in the final decision on which of the short listed candidates would be offered the post. She had no direct knowledge of why the Complainant was not appointed. Nor had she been told by Ms Butler, who made the decision, that the Complainant was too experienced for the job. Ms Dorian told that the Court that while her recollection on the point is deficient she believed that the use of this explanation was a form of benevolent indulgence on her part. As a matter of probability the Court believes that this explanation is substantially correct.
With regard to the reference to educational opportunities in the advertisement, the Court cannot see how this can be ascribed any ageist connotation. The Court could does not consider it to have any probative value in advancing the Complainant’s case.
For the reasons set out above the Court does not accept that the facts relied upon by the Complainant in advancing his claim of discrimination are of sufficient significance to raise a presumption of discrimination. Accordingly the Complainant cannot succeed.
While that finding is sufficient to dispose of this appeal, there is another aspect of the case to which reference should be made for the sake of completeness. The evidence disclosed that eight applicants for the disputed post ranged in age from 39 years of age to 54 years of age. Three candidates were not progressed beyond the first phase of selection. They were 39, 45 and 46 years old respectively. Those who were invited to the final interview were 54, 54, 44, 41 and 41 years of age. This pattern is not indicative of an ageist disposition in the selection process.
For all of these reasons the Court is satisfied that the Complainant was not discriminated against on either the gender or the age ground. The appeal is disallowed and the Decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
29th February, 2008______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.