EMPLOYMENT EQUALITY ACTS, 1998 TO 2007
Equality Officer’s Decision No. : DEC-E-2008-050
Mr John Cotter
(Represented by IBEC)
File No.: EE/2006/113
Date of Issue : 12 September , 2008
The dispute concerns a complaint that County Limerick Vocational Educational Committee discriminated against the complainant on the age ground contrary to the provisions of the Employment Equality Acts, 1998 to 2007 (referred to here as the Acts).
2 . BACKGROUND
2.1 The complainant underwent a selection interview for the post of Assistant Principal at Abbeyfeale Vocational School on 24th October, 2005 but was unsuccessful. A younger candidate was appointed to the position and the complainant alleges that the respondent discriminated against him on the age ground in the conduct of the competition.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on the 19th April, 2006. The parties attempted unsuccessfully to resolve the complaint at mediation and the Equality Mediation Officer issued a non-resolution notice to the parties on 3rd October, 2006. The complainant requested in writing on 10th October, 2006 that the investigation be resumed. Submissions were received from the parties by 20th February, 2007. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act on 10th May, 2007 on which date my investigation commenced. A hearing of the complaint scheduled for 8th April, 2008 was re-scheduled for 23rd April, 2008 at the respondent’s request. A further adjournment was allowed due to the non-availability of two witnesses for the respondent and the hearing was held on 5th June, 2008. The complainant presented documentation at the hearing which the respondent wished to consider and a response in writing and this material was received on 27th June, 2008.
3. SUMMARY OF THE COMPLAIMANT’S SUBMISSION
3.1 The complainant stated in a brief submission that the respondent was found by an Arbitrator on 13th February, 2006 to have discriminated against him on the age ground in an interview process for the post of Assistant Principal at Abbeyfeale Vocational School held in October, 2005. The complainant states that the respondent did not contest this finding and that the respondent went on to repeat the discriminatory treatment in subsequent interviews. The complainant alleges that the respondent victimized him for having previously referred complaints to the Labour Court (Equality Officer’s decision concerning marital status EE11/1990) and the Rights Commissioner (TE50/98/MR). The complainant alleges that the respondent discriminated against him in all promotional interviews under its auspices and refers to the respondent’s failure to respond to a request for information form EE.2 in relation to the present complaint and states that I may draw an inference from the respondent’s failure to respond the request.
4. SUMMARY OF RESPONDENT’S SUBMISSION
4.1 The respondent rejects the complainant’s allegations of discrimination on the age ground. The respondent stated that the selection interview board in question was constituted in accordance with Department of Education and Science Circular 43/00 and comprised a VEC member, an education specialist and a personnel specialist. The respondent’s HR Manager acted as Secretary to the interview board and played no role in the interviews or the awarding of marks to candidates. Marks were awarded to candidates in accordance with the marking scheme set out in Circular Letter 43/00 :
(i) 50% Capacity to meet the need of the School
(ii) 30% Service to the VEC Scheme
(iii) 20% Experience of a professional nature in the field of education and involvement in the School.
The respondent gave details of the marks awarded to the four candidates in the competition and their respective ages. The respondent points out that the complainant who was the eldest candidate, was placed second in the ranking while the youngest candidate was placed last. The respondent gave a detailed comparison of the complainant’s performance at interview compared to that of the successful candidate under the various categories above (and their sub-categories). The respondent referred to the complainant’s focus on his own administrative abilities and understanding of education and states that he failed to demonstrate how he could put into practice his knowledge of educational issues in the Abbeyfeale Vocational School. The successfull candidate on the other hand focused on the needs of the student and was involved in the student council and was co-ordinator for the Junior Certificate Social Programme. The respondent stated that the successfull candidate’s involvement in this area had resulted in the establishment of a very successful educational initiative in the school. The respondent states that the successfull candidate demonstrated superior communication skills and involvement in school activities in her application and at interview.
4.2 The respondent refers to various caselaw with regard to the burden of proof including the Labour Court in Southern Health Board and Dr Teresa Mitchell (DEE 011). The respondent states that the complainant has failed to adduce any evidence of discriminatory treatment on the age ground and states that a difference in age between candidates cannot in itself be relied upon as evidence of discriminatory treatment. The respondent also refers to the High Court in Davis v Dublin Institute of Technology (2000) in this regard.
4.3 Regarding the complainant’s statement that an Arbitrator found that the respondent treated the complainant unfairly in relation to age in the competition when reference was made to his lack of recent involvement in courses, the respondent states that the Arbitrator has no role in interpreting the Acts and that his statement would not comply with the standard of proof in equality cases as clearly established by the Labour Court. The respondent goes on to say that the difference in score for in-service training (2 marks) would have had no bearing on the outcome and that when the competition was re-run arising from the Arbitrator’s findings the result was the same. The respondent rejects the allegation of victimization and states that no such allegation was made in the complainant’s original referral to the Equality Tribunal.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. It is for the complainant in the first instance to adduce evidence from which a presumption of discriminatory treatment can be made (Section 85A of the Acts). The complainant is 15 years older than the successfull candidate and had 23 years service with the respondent as against the successfull candidate’s 13 years at the time of the competition. I note that in accordance with the procedures set out in Circular Letter 43/00 pertaining to the Assistant Principal competition, the complainant appealed the outcome to an independent Arbitrator prior to referring the complaint to the Equality Tribunal. The Arbitrator in her decision dated 13th February, 2006 states that her role is confined to ascertaining whether candidates have been evaluated in accordance with the criteria and marking scheme. The Arbitrator concluded that references by the interview board to the recency of the complainant’s references and his lack of recent involvement in training suggested an ‘ageist’ approach and a departure from the proper application of the criteria. I fully accept the respondent’s contention that it was not the Arbitrator’s role to interpret the Acts and that the Arbitrator in reaching her conclusion was not bound to the well established standard of proof set out by the Labour Court in equality caselaw. However the information on which the Arbitrator relied in arriving at that conclusion is undisputed and was provided in the respondent’s own submission. Having considered the evidence, I will allow that the issue raised by the respondent regarding the recency of the complainant’s references and training (the latter re-iterated in the respondent’s submission to this investigation where it states that ‘the complainant’s courses were in the main done many years ago’) in the context of the complainant’s age and length of service is sufficient to give rise to an inference of discriminatory treatment on the age ground and that it is for the respondent to prove the contrary.
5.2 I note that the marking scheme laid down by the Department of Education and Science is such that the candidate with the longest service, in this case the complainant, receives the maximum service mark of 30 and other candidates receive a mark based on their service as a percentage of that of the longest serving candidate e.g. a candidate with half the service of the longest serving candidate would receive 15 marks. An older candidate is likely to have longer service and in that respect the marking scheme favours the older candidate. The complainant received an additional 15.7 marks for service over the successful candidate.
5.3 In relation to the marks awarded to the candidates by the interview board, the Labour Court hasheld (Kathleen Moore Walsh v Waterford Institute of Technology) that where it is satisfied that the Interview Panel was properly constituted and conducted its business in accordance with accepted good practice, it would 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 Panel, unless there was clear evidence of unfairness or irrationality in the result. In that regard the respondent provided copies of the marking sheets for the four candidates and a commentary on the marks awarded to the complainant and the successful candidate under each headings. The interview board was constituted in accordance with Circular Letter 43/00 and the three members of the interview board and the secretary to the interview board were present at the hearing and gave evidence regarding the interview process.
5.4 The category ‘Capacity to meet the needs of the School’ for which 50% of the marks were available is subdivided into the following four categories (maximum marks in brackets) :
(ii) Capacity to fulfill a middle management role by meeting the needs of the school (20)
(iii) Contribution to the overall management, organisation and development of the school. Communications and organisation (15)
(iv) General presentation of case including application form (7)
The complainant and successfull candidate received equal marks under (i) however the successful candidate received 10, 6 and 2 marks more than the complainant under (ii), (iii) and (iv) respectively. These marks combined were sufficient to outweigh the complainant’s additional marks for length of service. I am persuaded by the evidence of the complainant’s responses at interview as outlined by the respondent at 4.1 above and by members of the interview board at the hearing that the complainant made a negative impact on the interview board under these categories and that the interview board was impressed by the successful candidate’s demonstrated knowledge and ability to communicate her ideas for the future.
5.5 The category ‘ Experience of a professional nature in the field of education and involvement in the School’ for which 20% of the marks were available is subdivided into the following five categories (maximum marks in brackets) :
(i) Personal Professional Development through In-Career and/or external programmes (5 )
(ii) Involvement with Boards of Management, Parents’ Associations, Representative Bodies, School Committees (3)
(iii) Work in association with educational bodies and institutions(3)
(iv) Course/subject development, co-ordination of courses (4)
(v) Invlovement in organizing school events, e.g. open days, prize giving, parents’ information meetings, extra curricular activities, school tours (5).
The successful candidate received 4 marks under (i) above while the complainant received 2 marks. It was in relation to this sub-category that the respondent refers to courses having been taken many years ago. Inevitably an older candidate will have taken courses that go back several years and in this respect the respondent’s position is open to the interpretation that it views older candidates negatively. However educational curricula and methods are constantly evolving and I would accept on balance that for professional training to be relevant it must be recent. As the respondent has pointed out, the marking differential of 2 marks in this sub-category would have no bearing on the outcome. Both candidates received 2 marks under (ii) above. In relation to areas (iii), (iv) and (v) above the successful candidate received 1, 2 and 2 marks respectively higher than the complainant. I note the interview board’s evidence that the higher marks reflected the complainant’s work as coordinator for the Civil, Social, Political and Education Programme and Junior Certificate Social Programme and associated work with educational bodies and institutions.
5.6 Having considered the evidence in relation to the conduct of the interviews and the award of marks I am satisfied on the balance of probabilities that the respondent had reasons unconnected with the complainant’s age for awarding the successful candidate higher marks at interview. I note that the complainant in his submission refers to ongoing victimisation of him by the respondent for having previously pursued a complaint of discriminatory treatment on another ground some 15 years previously. This allegation was not raised on the complainant’s complaint referral to the Tribunal and appeared to be a re-statement of the complainant’s dissatisfaction at the outcome of the selection interview which I have dealt with above. I found no evidence of victimization of the complainant by the respondent within the meaning of Section 74 of the Acts.
6.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts 1998 to 2007.On the basis of the foregoing, I find that the respondent did not discriminate against the complainant in terms of Section 6(2) and contrary to the provisions of Section 8 or victimise the complainant within the meaning of Section 74 of the Employment Equality Acts, 1998 to 2007.
12 September, 2008
 ADE 03/10