INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
CUMANN LUATHCHLEAS GAEL CHORCAI
(REPRESENTED BY DARA HAYES B.L., INSTRUCTED BY ARTHUR COX SOLICITORS)
- AND -
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 2nd September, 2013. A Labour Court hearings took place on the 28th January 2014 and concluded on the 4th April, 2014. The following is the Court's Determination:-
This dispute involves a claim by Mr Donal Coughlan (hereinafter "the Complainant") that he was discriminated against by Cumann Luathchleas Gael Chorcai (Coiste Chontae Chorcai) (hereinafter "the Respondent") on grounds of age within the meaning of Sections 6 (2) (f) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to access to employment contrary to Section 8 (1) (a) of the Acts when he was not shortlisted for interview for a Coaching and Games Development position. The case comes before the Labour Court by way of an appeal against a Decision of the Equality Tribunal (DEC-E2013-081) issued on 27th July 2013. The appeal was filed with the Labour Court on 2nd September 2013. The Case came before the Labour Court on Friday 4th April 2014. The case was adjourned to allow the parties make further submissions on the issues in dispute. The final submission from the Complainant was received by the Court on 14th May and from the Respondent on 22nd May 2014.
The Complainant filed the complaint under the Acts with the Director of the Equality Tribunal on 11th December 2009.
The Respondent is part of a national sporting organisation that is for administrative purposes organised along County lines. As part of a development initiative it decided to employ a number of people to promote its games through the school system and its club network. It advertised for suitable candidates for the available positions. The Claimant was amongst those that applied for the post at issue. After his application was received the Respondent decided to appoint a County Games Manager and to defer the filling of these posts until after the successful appointee was in place. It advised the Complainant of the delay. It subsequently re-advertised the positions at issue but altered the specifications for the job. It advised the Complainant of the change but assured him his original application would suffice. He was not required to submit a fresh application for the re-advertised positions.
The Respondent shortlisted a number of applicants based on an assessment /marking scheme it developed for that purpose. The Complainant was not shortlisted. Under the marking scheme he was awarded 17 out of a possible total of 28 marks. The cut off point for shortlisting was 21 marks.
The Complainant contends that he was not shortlisted because of his age, contrary to Section 6(2) (f) of the Acts.
The Respondent denies it infringed the Act. It argues that selection for inclusion on the short list was not age related.
Section 6 of the Act in relevant part states
6.—(1)For the purposes of thisAct, discrimination shall be taken to occur where, on any of the grounds inSubsection (2)(in thisActreferred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2)As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of thisAct) are—
- (f)that they are of different ages, but subject toSubsection (3)(in thisActreferred to as “the age ground”),
Section 8 of the Act in relevant part states
8.—(1)In relation to—
- (a)access to employment,
- an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(4)A person who is an employer shall not, in relation to employees or employment—
- (a)have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified inparagraphs (b) to (e) of Subsection (1), or
- (b)otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
(5)Without prejudice to the generality ofSubsection (1), 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
Section 85(a) of the Act in relevant part states
.—(1)Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary.
The Labour Court, in the case ofMitchell v Southern Health Board  E.L.R. 2001.clarified the manner in which the burden of proof is to be discharged.
In A Worker v A Hotel the Court stated
That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
Findings of the Court
In this case the Complainant responded to an advertisement in a public newspaper seeking candidates for consideration for appointment as Coaching and Games Development officers. The processing of applications was delayed pending the appointment of a County Games Manager. Thereafter the job specification was altered and the post re-advertised. The Complainant was advised he did not need to submit a fresh application for the post. His original application would suffice.
The Respondent duly considered the applications it received and decided to short list candidates based on an ad hoc marking scheme it developed for that purpose. Applying the scheme the Respondent established a short list of candidates that achieved 21 or more marks out of a possible 28 marks. The Complainant achieved 17 marks and was not included on the shortlist. Following protracted correspondence the Complainant concluded that he had been discriminated against under the Act on the age ground and filed a complaint with the Equality Tribunal. He was not successful in that complaint and appealed the Equality Officer's Decision to the Court.
When the case came on for hearing the Court asked the Complainant to set out the facts that gave rise to an inference of discrimination on the age ground. It further asked both sides to outline any statistical analysis of the age profile of the applicants and of those that were shortlisted in support or rebuttal of the complaint.
The Complainant carried out a statistical analysis of the ages of the applicants and of those that were shortlisted. He specifically carried out an analysis of the possible influence of applicant age on the outcome of the shortlisting exercise. He also carried out a chi square statistical test of significance to determine whether of age was a factor in the compilation of the shortlisting exercise relative to the age of the candidates. He concluded that the analysis disclosed no “statistically significant difference in outcomes on the basis of applicant age.”
In his submission to the Court the Complainant raised a number of other criticisms of the procedures followed by the Respondent in the recruitment process. However, he drew no correlation between those actions and his age.
Accordingly, the Court concludes that the Complainant has not established facts from which an inference of discrimination may be drawn.
On that basis the Court affirms the Decision of the Equality Officer and rejects the appeal.
The appeal is not allowed. The Decision of the Equality Officer is affirmed. The Court so determines.
Signed on behalf of the Labour Court
29th August, 2014______________________
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.