The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
Mr Patrick Sheehan
- V -
The Public Appointments Service
(Represented by Conor Dignam, B.L.
instructed by the Chief State Solicitor’s Office)
File reference: EE/2007/247
Date of issue: 28 April 2009
Keywords: Employment Equality Acts 1998 to 2008 – Discriminatory Treatment - Access to Employment – Age – Prima Facie case
1.1 This dispute concerns a claim by Mr Patrick Sheehan that he was discriminated against in relation to access to employment by The Public Appointment Service on the grounds of his age in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 18 May 2007 under the Employment Equality Acts 1998 - 2007. On 19 January, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts 1998-2008 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 22 April 2008. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he applied for the position of Prosecution Solicitor at the Office of the Director of Public Prosecutions. The recruitment competition was carried by the respondent and one element of the application form is the requirement to account for each month since leaving school. The complaint against the respondent is one of age discrimination, and the complainant submitted that the real reason for him not being invited to the next stage of the selection process was because his application form disclosed the number of months since he left school. This enabled the Board to estimate his age. The complainant submitted that at the time of the treatment complained of he was sixty five years of age.
2.2 The complainant rejected the respondent’s suggestion that he had provided ‘insufficient information’ to allow the short-listing board to assess his suitability for the advertised position.
2.3 The complainant submitted that he was better qualified than eligible newly qualified applicants who were unable to provide evidence of any post-qualification experience.
2.4 The complainant submitted that he requested statistics on the age profile of applicants that were short-listed for interview but was informed by the respondent that this information was confidential. The complainant challenges that assertion.
2.5 The complainant submitted that the personal details section of the application form which he was required to fill out states that completion of the date of birth field is mandatory.
2.6 The complainant is seeking a declaration that he was discriminated against on the age ground and that an adequate monetary sanction be imposed on the respondent.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that it is an independent body responsible for the recruitment and selection of candidates for a broad range of positions across the Public Service. The application process completed by the complainant comprised an online registration and the completion of an application form. The respondent received 52 applications for the position of Prosecution Solicitor, of which 43 were short listed for interview. The complainant was not amongst those short listed for interview.
3.2 The respondent denies any assertion of discriminatory treatment in its entirety.
3.3 The respondent submitted that the decision not to shortlist the complainant for interview was taken in a fair, equitable and non-discriminatory manner and that especial care has been taken to ensure that there is not discrimination. A copy of the information booklet for candidates was submitted in support of this contention.
3.4 The respondent submitted that the selection board with responsibility for interview was carefully selected to ensure an appropriate mix of experience, knowledge and expertise, the individuals ranged in age from 39 to 64 years.
3.5 The respondent submitted that the board members are not employed by the respondent with the exception of the PAS representative. It further submitted that the board acts largely independently of the respondent.
3.6 The respondent submitted that the board members were briefed in advanced by the PAS representative to ensure that short listing is conducted in a fair and consistent manner, in accordance with the policy and practice and the need for equal treatment of all candidates.
3.7 The respondent submitted that the information booklet specifically alerts prospective candidates to the possibility of short listing and that it is in their own interests to provide a detailed and accurate account of qualifications and/or experience. The booklet further states that “you may be short listed on the basis of the information supplied.”
3.8 The respondent submitted a copy of contemporaneous notes from the short listing process outlining the assessment criteria and indicating that a number of candidates were ruled out for providing incomplete information on the application form. In addition, the respondent provided copies of redacted application forms from approximately ten per cent of candidates, displaying the difference between candidates who provided enough information to be short listed and candidates whose applications were not short listed.
3.9 The respondent submitted that following on from the Labour Court’s decision in the case of Dublin Institute of Technology and a Worker (DEE994) “it is not the responsibility of the Equality Officer or of this court to decide who in the most meritorious candidate for a position” but that the essential question for the Tribunal to address is whether in fact or law, the respondent has engaged in less favourable treatment on the basis of the complainant’s age.
3.10 The respondent submitted that there is a very comprehensive appeals and review procedure which the complainant did not engage with.
3.11 The respondent submitted that all applicants, and in particular the complainant, are treated in a fair and equitable manner.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the Public Appointments Service discriminated against Mr. Sheehan in relation to access to employment on grounds of age, in terms of Section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The complainant stated that in January 2007 he applied to the Public Appointments Service for a position as Prosecuting Solicitor in the Office of the Director of Public Prosecutions. The complainant further stated that while completing the lengthy application form, he felt that he would be a prime candidate for discrimination on the basis of his age as he was required to detail all periods of employment since leaving school. This would enable the selection board to calculate his age.
4.4 The complainant stated that within a month of applying for the position he had received a reply informing him that he was unsuccessful. He sought an age profile of the candidates from the respondent but such a profile was not forthcoming at that time.
4.5 The complainant stated that on the basis of his completed application form, he felt that he was well qualified for the position. The complainant further stated that there was no proof that discrimination had taken place but that it was reasonable to infer on the balance of probabilities that there had been discrimination.
4.6 Prior to the hearing, the respondent submitted an age profile of all the candidates who had applied for this position. The profile indicates that 9 applicants out of 52 were not short listed for interview. Of those 9 applicants, 5 were not short listed on the basis of an incomplete application.
4.7 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”
4.8 In considering evidence submitted by both the complainant and the respondent in this case, it is clear that the unsuccessful applicants range across the age brackets. In addition, four applicants, who were at least twenty years younger than the complainant, were not short listed on the basis of insufficient information. This fact undermines the complainants assertions as to the ground for his not being short listed. In addition, it indicates that the complainant was not less favourably treated on the basis of his age but was treated in a similar manner to younger candidates.
4.9 The respondent had stated that the complainant was the fifth person who was not short-listed because of incomplete or insufficient information on the application form. A number of redacted application forms were submitted to the Tribunal in this regard. I am satisfied that the evidence presented to the Tribunal supports the respondent’s contention that the complainant’s application form amongst other completed forms provided insufficient information.
4.10 Having regard to the foregoing, I am satisfied that the complainant has not established facts upon which he can rely in asserting that he suffered discrimination on the basis of his age and no prima facie case has been established..
5.1 I have investigated the above complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts 1998 to 2008. The complainant has not established a prima facie case. Accordingly, I conclude this investigation and find against the complainant.
28 April 2009