ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006574
Parties:
| Complainant | Respondent |
Parties | A Clerical Officer | A State body |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00008823-001 | 16/12/2016 |
Date of Adjudication Hearing: 01/08/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is a Clerical Officer in a public service body, where he has worked for 10 years. The Complainant referred a complaint which was received by the WRC on 16th December 2016. The Complainant alleges that he was discriminated by reason of his age. He alleges that his employer treated him unlawfully by not promoting him due to his relative youth in comparison to other candidates. The most recent date of the alleged discrimination being 26th September 2016. The Complainant submitted an ES 1 form to his employer and received an ES 2 Form in reply. I am satisfied that the complaint is in time.
Summary of Complainant’s Case:
The Complainant submitted a detailed written submission.
The Complainant submits that in June 2016 he attended a competency based interview for promotion to the rank of Executive Officer in the public service body in which he is employed. During this interview he was asked about his People Management skills competency. When he had given an example he submits that he was asked if the colleagues whom he had mentioned in his example were older than him. He recalls that he responded by saying they all were and that he was the youngest in the particular office but that he was able to bring experiences from past roles to the job.
The Complainant asserts that he was then asked how he would handle working as an EO given the fact that he was young. The Complainant answered this question by saying he had worked, without problem, in a previous role when he was 18 where the majority of staff had been older. The Complainant claims that this question was followed up by a specific question as to how he would manage an office where the staff were older and more experienced than him. Having answered that question the interview moved on to other competencies.
The Complainant was informed by letter, 5th September 2016 that he had not been successful in qualifying for the next round of interviews for the EO positions.
The Complainant subsequently sought and was provided with a copy of the interview notes. The Complainant contends that the interview notes indicate a heavy reliance on the People Management skills competency (where his claim of discrimination is based) to make the decision on whether he should go forward to the next round of the promotion competition.
The Complainant submits that the interview notes contain a question asked of his ability to manage people who are "older…senior/more experienced", with the word older crossed out.
The Complainant submits that a number of actions of the interview board indicate actions of a discriminatory nature. Firstly, an attempt was made in the interview to establish his age vis-à-vis those of his office colleagues, secondly he was asked directly how he would handle older people as he was young, thirdly he was referred to as the youngest and not the most experienced in the interview notes.
The Complainant also submitted that an older colleague who works in the same office, who was interviewed directly before him was successful, that five older colleagues in his section who applied for the position were successful and that he was required to provide a photograph of himself for the interview process.
In addition the Complainant submitted that the interview notes indicate that the comments contained therein were not based on his competency but based on his age. The Complainant also alleged that the interview board was not constituted as it should have been according to the advertisement for the competition. He also questioned the adequacy of the training provided for the interview board in advance of the competition commencing.
At the hearing the Complainant gave oral evidence in support of the claims made in his written submission. In addition brought up the issue of the outcome of the interviews at the centre he attended. It was his view that having reviewed the statistical breakdown of the various centres used to carry out the interviews, his centre showed that only 17% of 27-35 year old candidates were successful, the lowest of any of the centres, indicating that in his centre the older you were the better the chance you had at getting through to the next round.
In summary the Complainant submitted that he was treated less favourably by the specific interview board on account of his age, if he had been older he would have been successful, but for his age he would not have been asked the line of discriminatory questions put to him.
Summary of Respondent’s Case:
The Respondent submitted a detailed written submission.
The Respondent denies that any discrimination took place and that the Complainant was not treated any less favourably than any other candidate in the selection process.
The Respondent submits that preliminary or pre-selection interviews were held in a number of centres across the country to select candidates to go forward to first round proper of interviews for promotion to Executive Officer. The Respondent submits that competition was at all times carried out in accordance with the Code of Practice for Appointments to positions in the Civil Service and Public Service issued by the Commission for Public Service Appointments (referred to from hereon as the Code of Practice).
During the pre-selection interviews every candidate was asked the same set of questions, however, sub-questions varied according to contexts and probative value.
The Respondent rejects the Complainant's contention that he was asked discriminatory questions by the interview board. The Respondent submits that age arose as a consequence of the Complainant himself informing the panel that he was "the youngest". A further question by the by the interview panel was framed in the context of probing and asking a candidate to elaborate on points made is a normal part of the interview process as a means of giving the Complainant an opportunity to outline the skills and competencies that he had relevant to the job.
Oral evidence from both members of the interview board re-inforce that it was the Complainant who stated that "he was the youngest and not the most experienced". Although one member of the board did use the word older in a follow-on question he immediately corrected himself and changed the expression to "more experienced". The question of experience was, according to the witness, asked at many interviews and at one time when an independent assessor present; the assessor did not pass any remarks on its utilisation. It was because one of the interview board had inadvertently used and then corrected himself that the word oldest had appeared in the interview notes.
Regarding the interview schedule the Respondent submitted that the interview process was at all times transparent and impartial, according to the Code of Practice. The interview schedule was prepared and distributed to each candidate without prejudice to any particular candidate; so candidates were properly notified of the time, date and location of their interview. The preparation and distribution of the interview schedule was objectively and reasonably justified by these legitimate aims and was honestly applied in practice and not discriminatory towards the Complainant on age grounds.
The requirement to provide a photograph in advance of the commencement of the competition which the Complainant allowed for the possibility of prejudice on age grounds by the interview board was addressed by the respondent. The Respondent submitted that the requirement to provide a photograph is necessitated in order to prevent personation where an interview panel is independent. S54 of the Public Service Management (Recruitment and Appointments) Act 2004 states as follows:
"54.- In respect of a competition for a position within the public service, a person shall not-
(d) personate a candidate at any stage of the recruitment and selection concerned"
In addition the Respondent put forward that section 5.2 of the Commission for Public Service Appointments Code of Practice for Appointments to the Civil and Public Service under "candidates obligations" also states that "A third party must not personate a candidates at any stage of the process."
The Respondent submitted that the requirement to provide a photograph is proportionate and objectively justified, is not prejudicial to any candidate or the Complainant.
In order to counter the Complainant's accusation that the interview board was not properly constituted and did not receive adequate training in advance of the competition oral and documentary evidence was provided by a member of the Respondent's Human Resources Department. The evidence given was that all members of the boards had received specific interview training and had attended a preparatory workshop in advance of this particular completion. The reason the panels consisted of two people only was because they were preliminary interviews and not full interviews. Evidence was also given in relation to the scoring system utilised.
Regarding the argument put forward by the Complainant that the statistical evidence pointed to discrimination on age grounds in the interview centre he attended the Respondent argued that the statistics indicated that there is no basis to extrapolate from the statistics that the Complainant was discriminated against.
Findings and Conclusions:
Section 6 of the Acts defines discrimination as follows: "6.- (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) 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 Act referred to as the "discriminatory grounds") which – (i) exists…," and "(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are – (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground").
The Complainant has submitted a number of items to support his claim that he was discriminated against because of his comparative youth when he entered the competition for promotion from Clerical to Executive Officer. The Respondent has countered each of these points and is adamant that no the process was fair and non-discriminatory.
Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. 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. I have examined whether the Complainant has established a prima facie case of discrimination. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:
“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as 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”.
My first task therefore is to assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination has been established.
In order to determine whether the Complainant has established a prima facie case a three tier test is employed:
First, the Complainant must establish that he is covered by the relevant discriminatory ground.
Second, he must establish that the specific treatment alleged has actually occurred.
Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.
With regard to the first test; it is apparent that the Complainant is comparatively young. A large proportion of the other candidates for promotion in this competition were older than him. So this test is satisfied.
Test two revolves around the interview process, the questions asked at the interview and the subsequent decision of the interview board in not selecting the Complainant to go forward to the next round of interviews.
The scheduling of the interviews does not indicate anything to me that could constitute a predisposition towards discrimination on the age ground.
The interview panel had a set of questions which were put to each candidate, follow-on questions stemmed from the answers given. From the evidence adduced it is clear to me that it was the Complainant himself who first brought the matter of his age into the deliberations. Although one member of the board re-used the phrase "older", this was a slip and it was immediately corrected. I do not believe the questions asked of the candidate were inappropriate or indicated any leanings towards discrimination on the age ground.
There was strong evidence to show the thorough preparations undertaken for this competition and the training given to the interview board members. I believe the board members were well aware of their obligations regarding equality, transparency and fairness.
The same scoring system was used for all candidates. It is not my role to speculate on the merits of the selection of candidates to progress to the next round save in relation to the allegation of discrimination made by the Complainant.
As a consequence of the above I do not believe the second test has been passed.
Test three; that he was not treated less favourably than an older colleague comparators. The Complainant points towards the statistical evidence to support this claim. However, the statistics from the centre he attended show that a significant number of the candidates who were selected to progress to the next round of the competition came from his age group.
Test three is not passed.
I do not doubt the sincerity of the Complainant in his beliefs that he was discriminated against because of his age. However, the evidence does not support his contention. I am satisfied that the interview board carried out their task in a fair and transparent manner.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I do not believe a prima facie case has been established and therefore the complaint is not upheld.
Requirement for Photograph
Although the Respondent has argued that the requirement that candidates provide photographs of themselves when applying for entry to such competitions is based in law I have my doubts. Surely in this day and age there are ways of preventing personation which are less open to allegations of prejudice. The "requirement" to supply photographs with application forms for job applications has long ceased elsewhere. I believe the Respondent, and other State bodies who require this of candidates should review the practice and come up with another system to prevent personation.
Dated: 4/9/17
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Age ground, discrimination, older, promotion, interview, photograph |