DECISION NO: DEC-E2013-169
Mr Michael Doyle
The Revenue Commissioners
FILE NO: EE/2010/841
DATE OF ISSUE: 4th of December, 2013
This dispute involves a claim by Mr Michael Doyle that he was discriminated against by the Revenue Commissioners on the grounds of age, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to getting a job.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 9th of November 2010.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 9th of January, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 12th of July, 2013. Final information in relation to this matter was received on 30th of August, 2013.
3. Summary of complainant’s case
3.1 The complainant submits that he was discriminated against, on grounds of age when the respondent failed to shortlist him for interview following his application for the post of Assistant Principal in Audit and Investigation in April/May 2010.
3.2 The complainant submits that he should have been successful due to his previous experience as a Higher Tax Inspector with the respondent plus nine years additional outside professional experience.
3.3 The complainant submits that he has the competencies required for the post and that these were detailed in his application form.
3.4 The complainant submits that the Statement of Reasons provided by the respondent for the failure to select him for interview and the accompanying scorecard do not provide him with the ‘blow by blow’ marking notes which he states ‘must have been used’ by the selection panel.
3.5 The complainant submits that he was not one of the 70 candidates selected for interview and that this was due to his age. He submits that he cannot discern without relevant data from the respondent whether these 70 who were called for interview were better qualified than him for the posts on offer. The complainant has no information regarding the age groups of those 70 candidates called for interview.
3.6 The complainant submits that the age breakdown of the 23 successful candidates demonstrates a significant slant towards the age bracket of 40 years of age and younger.
4. Summary of Respondent’s case
4.1 The respondent submits that the complainant has failed to establish a prima face case of discrimination on grounds of age.
4.2 The respondent submits that the complainant applied for an open competition for appointment to the post of Assistant Principal, Audit and Investigation in 2010. The respondent submits that there were 698 applicants of which 70 were selected for interview and 30 were placed on a panel. Of this panel 23 were appointed.
4.3 The complainant was not selected for interview following a short-listing process which examined all applications in accordance with a pre-set criteria and scoring matrix which had been established for the post.
4.4 A short listing Board of six Principal Officers and two external persons was established to determine which applicants would progress to the interview stage.
4.5 The short listing Board concluded that the complainant had not demonstrated in his application form the necessary breadth and depth of experience required for the specific role relative to those selected for interview.
4.6 The ages of applicants were not sought by the respondent as part of the application process as age was not a factor in their considerations.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to getting a job when it failed to shortlist him for the position of Assistant Principal, Audit and Investigation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of both parties at the Hearing.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A:
" provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
5.3 In Madarassy v Nomura International plc, IRLR 246 the Court of Appeal for England and Wales considered how a Court or Tribunal should approach the questions posed by the corresponding provision of UK legislation on the burden of proof. In a judgment concurred with by Laws and Maurice Kay LJJ., Mummery LJ held that in employment discrimination cases the law requires that a Tribunal must first examine the evidence to determine whether the action complained of by the employee would in the absence of an adequate explanation be unlawful discrimination. If the Tribunal makes that finding then the burden of proof shifts to the employer to disprove the allegation of unlawful discrimination.
5.4 The Tribunal and the Labour Court have consistently held that it is not the responsibility of the Tribunal to decide who was the most meritorious candidate for a position rather it is for the Tribunal to determine whether the Complainant was discriminated against on any of the grounds outlined in the Acts.
5.5 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)…..” Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows – “as between any 2 persons, ... that they are of different ages,..".
5.6 I must now assess whether the complainant has succeeded in establishing a prima facie case that he was not short listed for interview because of his age. It is agreed between the parties that the complainant did not get through the first stage of the short listing procedure. The complainant submits that this was due to his age and that the 23 successful candidates were skewed towards the age bracket of 40 years of age and younger. The respondent states that the complainant was not short listed due to the fact that his application form had not demonstrated the necessary breadth and depth of experience required for the specific role relative to those selected for interview and that this was unrelated to the complainant’s age. In addition the respondent advised the hearing that it had not requested any information regarding the age of applicants and stated that it was only after the selection process was completed and the appointments were made, that it requested the ages of the 23 successful applicants.
5.7 The complainant accepts that the respondent did not request the ages of candidates but states that it is possible from the details of qualifications and experience provided in the application form to make a rough estimate of the age group of each applicant. This the complainant submits is information which the respondent would have had in its possession when making the short listing decision. In considering this submission I am cognisant of the finding of the Labour Court in EDA 0416 Director of Public Prosecutions and Robert Sheehan which found that
“In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or the age ground. As was pointed out by Neill LJ inKing v Great Britain China Centre  I.C.R. 516 such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found by the Court. “
5.8 This dictum was later adopted by the High Court in Davis v Dublin Institute of Technology High Court, Unreported Quirke J 23rd June 2000. In addition, the rationale of this approach was explained in Citibank v Massinde Ntoko 15 E.L.R. 116 where the Court stated
"This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof".
5.9 The Labour Court in EDA 0416 Director of Public Prosecutions and Robert Sheehan went on to state that the complainant must establish “a factual matrix from which the Court may properly draw an inference that discrimination has occurred”. It also found that there was “no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies”. However, in O’Halloran v Galway City Partnership EDA077, the Labour Court found that, an inference of discrimination can arise where “a better qualified candidate is passed over in favour of a less qualified candidate” (see Wallace v. South Eastern Education and Library Board  NI 38 ;  IRLR 193 ) or where there is an unexplained procedural unfairness in the selection process. The complainant in that case submitted that his qualifications for the post in question were demonstrably superior to those of the successful candidate and that there was a lack of transparency and a general unfairness in the selection process.
5.10 The respondent advised the hearing that the candidates’ applications were assessed and marks were awarded based on four pre-determined criteria. A scoring matrix was then used to place the applications in four separate categories ranging from Category 4 - candidates who demonstrated excellent evidence of the skills or experience, to Category 1 - those who demonstrated little or patchy evidence of the skills/experience required. The complainant was awarded 50 marks at the shortlisting stage placing him at the top of Category 2 of the process. The respondent stated that only candidates who had scored 76 to 100 and who were placed in Category 4 of the scoring matrix were invited to the interview stage. These scorecards were submitted to the Tribunal in evidence. Applicants in Category 2 or 3 were not invited to the interview stage.
5.11 The respondent advised the hearing, that the complainant’s application form did not contain sufficient detail in respect of his current responsibilities and work experience, to enable him to achieve a higher score. The complainant at the hearing stated that it would have been unprofessional of him to provide too much detail in respect of his current work. The complainant also referred to the fact that he had, 10 years previously, been employed by the respondent and stated that the respondent could have accessed his files in order to ascertain information in respect of projects or work which he had undertaken during his employment with them. The respondent stated that it had received nearly 700 applications for this competition and added that the short listing was based on the information provided in the application forms and that the decision in respect of whether an applicant was suitable to proceed to the interview stage was based entirely on this information.
5.12 The complainant, at the hearing, also made reference to the fact that a former colleague of his was on the Selection Board but that this person had not seen his application at the time of the short listing process. The respondent advised the hearing that that it was not possible for each of the six Board members to examine each and every one of 698 applications. The respondent added that each application was examined by two Board members and where there was a disagreement in relation to the marks to be awarded the application was then referred to a third Board member.
5.13 The complainant made several references to the fact that he had worked for the respondent in the past and had an expectation that this would count in his favour in the selection process. The respondent referred to the fact that this experience, while relevant, had been prior to the year 2000 and stated that it was also concerned with candidates more recent work experience i.e. the experience gained in the ten years preceding the competition in question.
5.14 In O’Halloran v Galway City Partnership EDA077, (also referenced at pgh above) the Labour Court stated:
“Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace 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.”
5.15 The Labour Court has held that this general principle is equally applicable where other discriminatory grounds are relied upon. However in applying that general principle the Court has held that it is for the Complainant to prove as a fact that he or she was better qualified relative to the successful candidates. In addition the qualifications or criteria which are to be expected of candidates and the evaluation of candidates against those criteria are a matter for the employer in each case.
5.16 The complainant in the present case has not submitted any evidence that he is better qualified relative to the successful candidates but appears to be relying to a large extent on the fact that he was employed by the respondent in a similar role though at a more junior grade over ten years previously and referred to the fact that the respondent could in order to verify his suitability look into his past work record of ten years ago. The complainant also seemed to be put out by the fact that his application had not been assessed by Mr. X a member of the selection Board but who was also a former colleague of the complainant.
5.17 The respondent in the present case has outlined the procedure followed and has provided evidence of this procedure and the score sheets used to shortlist candidates for the interview stage. The respondent has also submitted that it was not aware of candidates’ ages as they were not requested or provided for in the application form for the post. The complainant has conceded that this was the case.
5.18 The complainant at the hearing made much of the fact that he was not provided with adequate feedback but conceded that he had not requested feedback other than in the form EE02 which was sent to the respondent as part of his complaint to the Tribunal and to which a response was issued by the respondent. The complainant at the hearing made no reference to the fact that his failure to be short listed was in any way related to his age and instead focused on the fact that he felt he should have been treated differently and more favourably than other candidates due to his former working relationship with the respondent. The respondent at the hearing acknowledged that although this previous experience with the respondent was relevant it did relate to the time period up to the year 2000 and so was less relevant than the complainants more recent work experience of which very little detail was provided in his application
5.19 Having considered the submissions made and the totality of the evidence adduced I am not satisfied that facts have been established of sufficient significance to raise an inference of discrimination. The Complainant submitted that the reason he was not short listed for interview was due to his age, but has provided no evidence to substantiate this claim. In addition the fact that the respondent did not request or obtain the ages of candidates prior to shortlisting them would support the submission that it could not have been influenced by the candidates ages when selecting them for interview.
5.20 I am also satisfied from the facts supplied that the Complainant has not demonstrated that he is better qualified or has met the criteria for the selection for interview to a greater degree than the successful candidates and hence the I cannot find facts from which it could be possible to raise a presumption that the short listing process for the post of Assistant Principal in Audit and Investigation, in 2010, was tainted by discrimination. Thus I am satisfied from the totality of the evidence adduced in relation to this matter that the failure to short list the complainant for interview was not in any way related to his age.
6. Decision of the Equality Officer
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2008 I issue the following decision. I find that
(i) the respondent did not discriminate against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in relation to the competition for the post of Assistant Principal in Audit and Investigation in 2010.
4th of December, 2013