ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008454
Public Appointments Service
Brooks & Company Solicitors
Sarah-Jane Hillery, BL instructed by the Chief State Solicitor's Office
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
23 May 2017
Date of Adjudication Hearing: 20 December 2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 23rd May 2017, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Employment Equality Act. This complaint was heard at adjudication on the 20th December 2017 with a related claim. The instant complaint is made against the Public Appointments Service while the related complaint (ADJ 11134) is made against the Department.
The complainant was represented by Brooks & Company Solicitors. The respondent was represented by Sarah-Jane Hillery, BL instructed by the Chief State Solicitor’s Office. Five witnesses attended for the respondents, two for the Department and three for the Public Appointments Service. I have included the complete submissions and evidence of the complainant and both respondents. In its findings, this report addresses the selection/interview complaint and not the complaint related to retirement as this did not involve this respondent.
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015following 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.
The complainant alleges age discrimination following his placing of 87 on a panel of inspectors; the respondent denies the claim.
Summary of Complainant’s Case:
The complainant worked for the respondent since 1990 as an inspector on two plants. In December 2016, the Department ran a competition for new veterinary inspectors. The complainant interviewed for the panel on the 14th March 2017 and retired on the 31st March 2017. He received good feedback from the interview but placed 87 on the panel.
The complainant outlined that he had been doing the job for 27 years, doing the work of two employees. There was a requirement to have an independent expert on the interview panel, but the person designated as independent was then working for the respondent. The PAS did not do an independent analysis. Despite his work record, the complainant was placed 87 on the panel. He was looking to retire at 70 and had to retire for 6 months to get on this panel. Those higher than him on the panel were younger and one person, placed 64, had only retired three months ago so could not take up the role.
The complainant submitted that there was an irrationality between his interview notes and his score. He gave good evidence of his 27 years’ experience and how he knew the job inside out. The respondent praised him for exceeding in the role. The placing of 87 does not tally with the interview notes. An inference could be drawn that the respondent was looking for younger people as the candidates placed on the panel were younger and less experienced. The complainant had to train in one person taken from the panel. This was about age discrimination and irrationality in how they assessed candidates. The panel was not independent, in particular the panel member designated as the external expert. The interview notes do not highlight the complainant’s very good interview. He was ably qualified and had many years of experience.
In evidence, the complainant said that the interview was good and he enjoyed it. They asked him questions. He had completed interviews in 1990 and then relied on his experience in general practice. He was now able to give “on the job” experience. He was asked about the highlights of his career; he gave an outline of doing audits for a State regulator. He mentioned a high-profile Tribunal and described this as a “baptism of fire”. He had raised practice issues and made a statement to the Tribunal Chair. After the Tribunal concluded, the inspectors did more training and the Department introduced Standard Operating Procedures. They had an audit from a significant importer in 2016 and he was required to issue a legal notice as part of this inspection.
The complainant was asked at interview about his most challenging role. He mentioned a named facility and pig farming. The issue involved a local politician. He had highlighted a problem and met the farmers. He told them that they would have to improve their husbandry. They allowed a farmer to see the slaughtering process so he could see why the contamination was so high. This resolved the issue.
The complainant said that he also dealt with the meat and bone meal issue where farmers were over-feeding animals meat and bone meal, causing them to die. There were court proceedings where the Department raided one farmer. The complainant then stopped certifying the slaughtered meat as free of meat and bone meal. This was a high-profile intervention in line with Department policies. This was team working under pressure and involved interpersonal skills. The complainant outlined that you had to relate to the farmers to get a problem resolved. The Department was involved the whole way.
At the interview, the complainant gave an outline of his daily operations, for example ante mortem, to review the animals to ensure they were fit and healthy. In 2000, the EU found in an audit that Ireland was then allowing animals with broken legs to be slaughtered. It was his job to coordinate the inspectors so that they were on the same wave length. The complainant said that he had worked with TVIs who came in on shift. They were encouraged to sort issues locally. He had to manage a “go slow” by TVIs in 2012 regarding BSE sampling. The complainant outlined that he gave evidence in 2006 at an Employment Appeals Tribunal when a factory closed. He was the supervisor of the TVIs and gave evidence about what he and they did. He did not know whether they were employees and he wanted them to get the job done. This facility was subject to audit by US authorities. The complainant used to meet the TVIs to pass the audit and they worked as a team.
The complainant said that he was asked at interview about the challenges arising over the next five years, He answered regarding the danger posed to milk powder by disease. This is an issue involving baby food exports to China. Johnes is a danger to whole milk industry. He thought that they were looking for discussion on Brexit, but, in his view, this is a commercial issue. In agriculture, their job was animal welfare and health and public health. While Brexit will have a commercial impact on farmers, he had an interest in Johnes disease.
The Department official asked the next questions at the interview. The complainant knew of him. The official brought up DVO issues and gave an example of a woman with five hens who said, “what the heck” about avian flu. The question related to conveying to her the threat to the industry locally. He was asked whether the TB scheme was a failure. The complainant replied “no” as the problem had reduced but there is a structural issue with moving animals to marts. They had to continue with the “fire brigade” service and there may be a vaccine. The official asked about residue testing and the complainant gave an outline of what he did for the last 27 years. He gave an example of managing interpersonal conflict between a TVI and the factory. He used legal notices on occasion to close factories where they were not getting the message. He did this under the direction of the Department. It took a year to get to know factory management and they would test out an inspector. They are under instruction to get the most money, so the complainant went to the most senior manager. The complainant did not think he mentioned the importance of experience during the interview as they moved on. They were looking to talk about what the interviewee did not know.
The complainant said at the end of the interview that he was not ready to retire and that he stood by his application. He learnt that the Department had appointed the external expert as the recruiter had difficulties in getting external experts. The complainant made a protected disclosure regarding the recruitment process and the issue of age. He put in FOI requests to find out how the external expert was paid. The recruiter said that they paid the external expert. He heard that the external expert was working as a locum tenens. This meant that of the four on the panel, two of whom were from the Department. It had the casting vote. The recruiter did not follow correct protocols in selecting the external expert. The interview guide was not applied as they did not select the highest quality candidates. Younger and inexperienced candidates were chosen. It took the complainant three efforts to get the interview guide. The panel had not indicated to him that they had read his application as required by page 3 of the guide. The scoring part states that a balance should be struck between previous experience and the potential to meet the requirements of the role. The complainant had shown that he had the experience but only scored 67%.
The complainant commented that his replacement at a high-profile facility required 200 hours’ supervision. He described the replacement as “raw” and the complainant provided some of the supervision. He asked why the Department put in inexperienced staff when they could be audited at any time. He commented that the respondent did not originally give him the section “exploration of key achievements to date”. This had been blanked out. The complainant questioned what the Department were at. If this had been complied with, he would have been in the first 10 on the panel. The Department knew in advance who was going for interview as he signed the standard declaration in the application. This gave his consent and showed that the Department knew in December who was doing the interviews. The end result was that younger, inexperienced applicants got the jobs.
The complainant submitted in a loose-leaf marking sheet. He said that the marks do not reflect his experience and achievements. He would not have lasted audits had he performed this poorly. He had been in charge of 20 or 25 staff and should have scored more in “effective teamworking”. He had to appease famers and get factories to spend money. He accepted that there is a difference between what happened in the interview and what happened in the factory. He said what he did. His age and experience were used against him. He had worked as a team with the Department and obtained excellent references from his supervisor. The panel’s body language suggested he was doomed from the start. The Chair looked apprehensive. The complainant commented that they were going to do a “dastardly deed”. They were tense and this was why they were so tense. They were not at ease and he knew he had a problem with the panel.
The complainant was due to retire on the 21st October 2017. He assumed that he would be high on the panel and retired early in March 2017. He worked for the Department as a locum tenens until October 2017, when this contract is finished. One colleague placed 3rd but cannot take the role as he is to retire in February 2018.
In conclusions, the complainant opened case law relating to a retirement age (Hampton v Lord Chancellor of the Administrator of Justice  IRLR 258). He relied on Moore Walsh v Waterford Institute of Technology (DEC-E2016-153) where the applicant had previous difficulties with a person who interviewed her. The complainant submitted that this adjudication needed to consider the inconsistency between his experience and track record with the mark given to him by the interview panel. He relied on O’Higgins v University College Dublin  IEHC 508 regarding the need to identify clear evidence of unfairness or manifest irrationality. It relied on A Box Office Cashier v An Arts and Entertainment Centre (ADJ 6654) where an employer had to consistently apply a retirement age.
The complainant said that the respondent discriminated against him by setting different retirement ages when it allowed others to continue beyond 65. He relied on the Labour Court decisions in Moore Walsh and Sheehy Skeffington v NUI Galway (DEC-E2014-078) as the interview panel in his case had demonstrated manifest irrationality in ignoring his experience. The interview panel ought to have regard to his work in two plants. He wished to work until he was 70 and the Department should have informed him of the option of staying in employment.
The complainant accepted that the adjudication could not look behind the respondent’s decision unless there was clear evidence of discrimination or manifest irrationality, including an absence of transparency. The marks awarded in this case showed irrationality as younger people scored better despite their lack of experience. The complainant said that other department officers were retained and their being allowed to retire at different ages was discriminatory. He had not applied for retention and did not know he could. He qualified under the specialist skills part of the retention circular 13/1975. He commented that the panel order of merit showed that 75% were aged between 20 and 35 and this was a huge discrepancy especially with his wealth of experience.
Summary of Respondent’s Case:
The Public Appointments Service was engaged by the Department to run a competition for the appointment of a panel of veterinary inspectors. It denies discriminating against the complainant on grounds of age.
The manager said he worked in the competitions and recruitment section of the Department. His role was to manage all competitions, both internal and open ones. This competition was extensive and covered the whole country. They were filling posts across a panel, with a likely high number of applicants. They asked the recruiter to undertake the process. It required a job specification, a person specification, the terms and conditions of employment and sanction for the competition. The Department defined the regions to recruit for and had little involvement once the job description was agreed, except to ask a representative to sit on the interview panels.
In respect of the interview panel, the Department maintained a list of staff trained in interviewer skills. The manager would normally pull out 7 or 8 appropriate names. A named Department official carried out the shortlisting. They would also put forward a Department nominee to sit on the interview board. In this case, there were two boards and the Department selected two nominees. This competition required a great deal of commitment. The recruiter contacted the Department to say that there was a difficulty getting an external expert. The manager suggested going to a state agency but they had no one available who could make the necessary commitment. The manager suggested getting a retired member of staff and they agreed that this was acceptable. The manager contacted the external expert to check his availability and then made his name available to the recruiter. The external expert was eligible to be paid and was an agent for the recruiter. Once this process was completed, the Department had no input in the assessment process. The manager was informed of the number of candidates but the Department did not see the list of candidates. Once the recruitment process finished, they liaised with the Department’s HR function regarding filling posts according to region.
The second Department witness outlined that the external expert was retired and employed as a locum tenens. This was sporadic work. He did not work on the days he was serving on the panel. The locums are contractors and not employees. He understood that the candidate who came third was now in a more senior role. The Department HR’s role arose once when the panel was formed and presented by the recruiter. The witness commented that no one was given an extension or retained in the civil service having reached the retirement age. This required going to D/PER. Anyone starting in this role started at the bottom of scale. There was no financial benefit to hiring younger people. It is hard to retain an employee on hardship or on specialist grounds as there was a panel.
The PAS recruitment manager outlined that they finalised the information booklet and agreed the documentation with the Department. They sought the Department nominee to shortlist candidates, which took place on the 13th December 2016. They were looking for interview panel members for 12 days and could not get two external people to commit so many days. They wanted someone from a university and were running out of time. They had used a retired employee in a previous competition and engaged the external expert to sit on the panel. The recruiter provided a briefing note to board members regarding the Code of Practice and conflict of interest. There were clauses on equality and confidentiality.
During the shortlisting process, the Department representative saw the applications but also signed the confidentiality document. The recruiter’s representative on the panel was there to ensure that policies were observed. They provided training to all board members. The dates of birth of the candidates were not provided to the interview board. After each interview, the board came up with a consensus score for the candidate. At the end of each day, the panel would check they had the order of candidates. The document showing candidates’ dates of birth and placing was created for the mediation. The Department did not give any instruction regarding age.
The PAS reviewer outlined that she wrote the letter of the 1st June 2017. She works in an independent section of the recruiter and her role was full-time reviewer. This was a “section 8 review” of the process. She spoke to the interview board and reviewed the candidate’s concerns. She looked at the process, the structure and the evaluation. She checked in relation to conflict of interest. She was satisfied that the panel members were trained and complied with policy. She was looking for prior knowledge and checked that this was not taken into account. She checked that PMDS was not taken into account as it would give an advantage to civil servants. The complainant had the opportunity to give evidence of his PMDS at the end of the interview but did not introduce this. The panel could evaluate what the candidate did and what was presented at interview. The scores are recorded after the interview and for each area. She did not know where the complainant placed on the day.
In submissions, it was noted that there were two respondents. The process was important and great efforts were made to ensure that there was no breach of process. The complainant had the qualifications and was appointed to the panel. The recruiter is an employment agency under section 11 and the Department is the employer. There was no discrimination and no facts to infer discrimination. The complainant was happy with the interview and the interview notes. It was only on getting the results that the complainant raised the issue of age. The third-place candidate was also aged 64. There were no discriminatory qualification requirements and no discriminatory questions asked. Dates of birth were not provided to the panel. The recruiter’s documentation referred to equality and this was provided to the panel. It is for the complainant to establish facts from which discrimination can be inferred. The respondent referred to documentation which demonstrated the age spread across the panel and the percentage of older people was reflected throughout the process. In respect of the panel’s body language, the adjudication was the first time this issue had been raised and it was not part of the review. If there was any such body language, it was nothing to do with age as other older candidates were placed higher.
Findings and Conclusions:
In submissions and in evidence at the adjudication, the complainant gave an outline of his significant and eventful professional career as a veterinary inspector until his retirement in March 2017. After a period in private practice, he commenced as a veterinary inspector in 1990. He inspected meat plants for the Department. He referred to positive appraisals of his work, which commented that he exceeded expectations. He outlined the challenges of engaging with plants to ensure that standards were complied with. He spoke of engagements with the political and legal spheres, for example giving evidence at a Tribunal and in respect of longstanding employment law proceedings. He engaged with the inspectorate services of importer countries. It is clear that the complainant had a successful career until his retirement in March 2017.
On the 19th October 2016, the complainant applied for the panel of inspectors then being established by the Department. He wished to work until he was 70. He was interviewed on the 14th March 2017. The interview commenced at 12.48pm and finished at 1.36pm. The complainant was provided with the handwritten notes of the panel members. Their assessment note concludes “candidate provided very good evidence at interview across the range of the required skills. A good candidate.” The complainant scored 154/200 in “specialist knowledge and expertise”, 68/100 in “effective teamworking skills”, 65/100 in “working under pressure” and 59/100 in “interpersonal and communication”. On the 2nd May 2017, the complainant was informed of his placing at 87 on the panel. The respondent’s spreadsheet indicates that there are 106 on the panel. It states that the complainant was only eight places away from the top of the list in his geographical area of preference.
The complainant asserts that the interview panel’s notes state he gave “very good evidence” across the range of the required skills, but placed him at 87 on the panel. This was illogical and irrational, given his 27 years of experience. While working as a locum, he trained the replacement inspector, who qualified in 1996. A second inspector was appointed to the plants and this person qualified in 2012. This was evidence of age discrimination. The complainant refers to other inspectors who were granted extensions beyond their 65th birthdays and the failure to offer him a contract was discrimination.
In O’Higgins v. University College Dublin  E.L.R. 146, the Labour Court set out the legal test whether an applicant has established a prima facie case of discrimination in a recruitment and interview process in the following terms:
“1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination
2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.
3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts
4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.
5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.
6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.
7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8. The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”
In Moate Community School v Moriarty (EDA0718), the Labour Court assessed the burden of proof in age discrimination recruitment and promotion cases in the following terms:
“In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.
Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.”
In Sheehy-Skeffington v NUI Galway  E.L.R 95, the Equality Officer held that, cumulatively, the complainant had established a prima facie case of gender discrimination where the complainant sought promotion from College Lecturer to Senior Lecturer. The Equality Officer pointed to such factors as the lack of an agreed marking scheme, the exclusion of suggestions of the external member, the inclusion of a candidate not eligible to be interviewed, the lack of gender balance on the panel (as opposed to representation), the role of the Registrar in the appeal, the fact that three males scored higher for teaching when they had fewer contact hours, the lack of acknowledgement of the complainant’s PhD supervision work and her role on statutory bodies. The Equality Officer had regard to the preponderance of female College lecturers but the much higher number of male Senior Lecturers. The Equality Officer held that the respondent had not rebutted the inference of discrimination and found for the complainant.
In A Teacher v A National School DEC 2014-97, the Equality Officer held that a prima facie case of discrimination on grounds of age was established due to the significant difference in the qualifications of the complainant and the comparator, and the interview panel’s determination that they were equally qualified. The Equality Officer also had regard to discrepancies in the selection process and the overlooking of the complainant’s management role in the school. The Equality Officer concluded that the school failed to rebut the inference of discrimination on grounds of age.
In the first instance, it is not my role to determine which candidate was the most suitable, or whether the successful candidates were the right choice. My role is to assess whether the complainant has established facts of such significance that raise an inference of discrimination. This may involve assessing whether there is evidence of unfairness or manifest irrationality in the outcome. It may also involve assessing the connection between the selection criteria and the outcome of the recruitment process. The overall requirement is to assess whether the selection process was tainted with unlawful discrimination on the grounds of age.
Applying the above legal test to the evidence in this case, I make the following comments and findings. The first issue is the challenge to the participation of the external expert on the panel. The complainant says that the external expert was working as a locum for the Department at the time he sat on the panel. The respondent’s evidence was that he was not working for the Department on the days he was sitting on the interview panel. Having considered this matter, even if the external expert was working as a locum, I cannot see how it impinged on the fairness of the process. There were no previous difficult interactions between the complainant and the external expert (unlike those in Moore-Walsh). The complainant has not pointed to any wrong of the external expert, either in the interview or in the past. It follows that the participation of the external expert is not a fact of significance in assessing whether age discrimination occurred.
In assessing whether the complainant has made out a prima facie case of discrimination, I note that the respondent engaged PAS to carry out the process. PAS held the interviews and assessed the candidates, with the participation of Department nominees. PAS prepared the document detailing the names and placings of the successful candidates. The PAS Code of Practice provides for a fair and transparent process, where appointments are made on merit. It emphasises that the selection process should embrace “genuine equality of opportunity.” The process in this case was shortlisting and interview. Central to the approach undertaken by the respondent and PAS was the assessment of candidates by what they said at interview. The interview notes track the course of the exchanges between the panel and the complainant. He answered the questions, demonstrating his skills and experience. The question is whether the approach of the panel displays unfairness or irrationality.
Having considered the evidence, I find that there is no fact of significance to show age discrimination. The panel recorded the answers given by the complainant. This included his experience, but as submitted by the respondent, experience was not the sole or primary determinant of assessing relative suitability. The panel asked questions about future challenges and about workplace skills. It scored the complainant’s contributions accordingly. Nothing in interview notes or the evidence raises the inference of age discrimination. The panel made its assessment of the contributions and even if one might have a different opinion, there is nothing that points to discrimination. The complainant of age discrimination is, therefore, not well founded.
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.
For the reasons set out above, I do not find favour of the complaint made pursuant to the Employment Equality Act and I deem it not well founded.
Dated: 22nd June 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Employment Equality Act
Age discrimination / interview panel
O’Higgins v. University College Dublin  E.L.R. 146