The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-097
Bray Money Advice & Budgeting Service Limited
(Represented by Peninsular Business Services (Ireland) Ltd.)
File reference: EE/2010/406
Date of issue: 16 August 2013
HEADNOTES: Employment Equality Acts Sections 6 and 8 - Age - Access to Employment - section 79 (2A) - decision on basis of written submissions.
1.1 This dispute concerns a claim by Mr John Ledwidge that he was discriminated against by Bray Money Advice & Budgeting Service Limited on the grounds of age contrary to section 6 (2) (f) of the Employment Equality Acts in relation to access to employment in terms of section 8 of the Acts
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 26 May 2010 under the Employment Equality Acts. On 21 January 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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, on which date my investigation commenced. Written submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation I scheduled a hearing for 21 March 2013. The complainant replied that he did not wish to attend the hearing but asked that I complete my investigation and issue a decision without a hearing.
1.3 Section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 inserted a new subsection 2A in section 79 of the Employment Equality Acts which provides:
"(a) Where the Director considers that the case may be dealt with on the basis of written submissions only, the Director shall notify the parties in writing of his or her proposal to do so.
(b) A notification under paragraph (a) shall inform the parties of the right to make representations to the Director in accordance with paragraph (c).
(c) A person who receives a notification under paragraph (a) may, within 28 days from the issue of the notification, make representations to the Director as to why the case should not be dealt with on the basis of written submissions only.
(d) Where, in representations made pursuant to paragraph (c), objection is made to the Director dealing with the matter on the basis of written submissions only, the Director shall not determine the matter in that manner."
Having read the written submissions I considered that I could deal with the case on the basis of these submissions. Accordingly, I gave notification of this to both parties and asked them to respond within 28 days. Both parties confirmed within 28 days that they had no objection to the matter being dealt with on the basis of the written submissions.
2. COMPLAINANT'S WRITTEN SUBMISSION
2.1 The complainant stated that he applied for the position of Administrator with the respondent and attended for an interview on 27 November 2009. He was not offered the position and contends that the decision was discriminatory on the grounds of age.
2.2 Firstly, he submits that the advertisement was indirectly discriminatory in that it stated "Bray MABS wishes to recruit a committed enthusiastic and energetic Temporary Full-time Office Administrator." The complainant submits that this wording shows that the respondent was looking for a younger person. The advert indicated the skills required but has no such requirement for suitable experience.
2.3 Secondly, he submits that the interview was discriminatory. He contends that the questions put to him and the questions not put to him demonstrated that the interviewees were merely going through the motions. The complainant believes that the treatment he received in the interview was different to that given to a younger person. He was asked if he would be able to run a very busy office and together with the demeanour and tone of the speaker indicated to the complainant that this was a reference to his age.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent submits that the position of temporary Office Administrator was advertised and they received fifteen applications. Seven of these, including the complainant, were short-listed for interview. Only five of those shortlisted attended the interviews. The complainant was ranked fourth of the five applicants interviewed.
3.2 There were three people on the interview board, they met before the interviews and agreed the questions that would be asked of all the interviewees. The candidates were assessed in relation to five criteria and the successful candidate scored higher than the complainant in all five areas. The main differences were that the successful candidate had previously worked for another MABS office and her knowledge of IT and admin systems was more relevant than the complainant's. Also, the complainant answered some of the questions with a question.
3.3 The respondent submits they went through a fair recruitment process to fill the post of temporary Office Administrator and the age of the complainant or any of the other candidates was not a factor. They concluded that the successful candidate had superior relevant qualifications and skills to the complainant and the other candidates. The successful candidate was 32 and the only other candidate who put their age on their CV was 37. The respondent estimates from information in their CVs that two of the candidates, including the complainant, were in their forties and the fifth candidate in their late 20s.
3.4 The respondent contends that the complainant has failed to establish a prima facie case of age discrimination and cited Labour Court Determination No. DEE011, Southern Health Board (Cork University Hospital) and Dr Teresa Mitchell which stated: "a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the court, and they are regarded by the Court of being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
4. FINDINGS and CONCLUSIONS
4.1 I have to decide if the complainant was discriminated against by the respondent on the grounds of his age in relation to access to employment. In reaching my decision I have taken into account the written submissions made to me in the course of my investigation.
4.2 Section 85A (1) of the Employment Equality Acts essentially enshrines the principle set out in the Mitchell case cited by the respondent and states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". In this claim the ground is age and it is made in relation to access to employment. Section 8 (5) of the Acts states: "an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee --
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons,
where the circumstances in which both such persons or classes would be employed are not materially different."
4.3 The first part of the claim relates to the complainant's contention that the wording of the advert, "Bray MABS wishes to recruit a committed, enthusiastic and energetic Temporary Full-Time Office Administrator for our office", raises an inference that the respondent was looking for a younger person. The respondent submitted a copy of this advert and copies of adverts used by two other MABS organisations. This shows that it is standard wording used by a number of organisations. It does not necessarily mean that the wording is not discriminatory but it does mean that a number of people have considered the words and deemed them to be appropriate for the recruitment of a temporary administrator. I have considered the words, 'committed, enthusiastic and energetic', and conclude they are traits that any organisation would want of a temporary office administrator. I do not accept that they would raise any inference of discrimination, unless there was some action in the interview that could be linked to them.
4.4 The complainant contends that the questioning and manner of the interview indicated to him that the interview board was merely going through the motions with him and he was treated differently than a younger person. He gave one specific example when he was asked about his ability to run a very busy office. The respondent submitted copies of the questions they asked all interviewees and copies of the marks in five categories for the five interviewees, indicating those of the complainant and the successful candidate. Furthermore, they gave written reasons for the difference in scoring between the complainant and the successful candidate. The main differences highlighted by the respondent were the successful candidate's previous work experience in a similar role, the relevance of her experience and IT skills and that the complainant was unclear in his answers and on occasions answered a question with a question. The complainant was given a copy of the respondent's written submission but did not take the opportunity to make a written response before agreeing that I could deal with his claim on the basis of the written submissions.
4.5 In considering the written evidence before me I conclude that the evidence of the complainant is insufficient to indicate that age was a factor in the interview board's considerations. Furthermore, I conclude from the evidence provided by the respondent that all the candidates were given the same opportunity in relation to their application for this post and they have complied with section 8 (5) of the Acts.
5.1 In accordance with Section 79(2A) of the Employment Equality Acts I issue the following decision.
5.2 I find that the complainant has failed to establish a prima facie claim of discrimination in relation to access to employment on the ground of age and the complaint fails.
16 August 2013