ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005495
Parties:
| Complainant | Respondent |
Parties | Sean Callaghan | Roscommon County Council |
| Complainant | Respondent |
Anonymised Parties | A Worker | Local Authority |
Representatives | Siobhan McGowan Purdy FitzGerald Solicitors | Mary Lindsay , Head of HR |
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-00007682-001 | 18/10/2016 |
Date of Adjudication Hearing: 22/11/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 79 of the Employment Equality Acts, 1998 - 2015] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant submitted that he had been discriminated against on age grounds by the respondent in relation to the matters of promotion and the provision of training.In January 2016 , the respondent circulated details of new Emergency Services Driving Standards and offering a training course to achieve these standards. The criteria to be eligible for training were possession of a relevant Class C license , completion of probation and “ persons with longer service will be given priority over other members”. According to the claimant only 2 training places were available for his station and as 2 of the claimant’s colleagues were older and had longer service and arising from this the claimant felt precluded from applying. The claimant advised his line manager that he was aggrieved about the eligibility criteria – the claimant was informed that the criteria set out formed no part of any policy but a senior manager within the fire service had decided to include it. The position of driver subsequently arose and the claimant’s colleague who had undertaken the training , the claimant and a second colleague of his applied – it was submitted that the claimant’s colleague – who had the ESDS training -was older than the claimant and had longer service. The claimant attended for interview on the 16th.May 2016 and was advised on the 19th.May that he had been unsuccessful- he was place 2nd. on the panel and the colleague who had been facilitated with the training was awarded the position. The claimant submitted that he was discriminated against on age ground because he was younger and had less service than his successful colleague and that the denial of access to training resulted in his being unsuccessful in promotion. He submitted that he had made out a prima facie case of discrimination and that the burden now shifted to the employer. He contended that the provisions of DEC-E/2000/14 held that age discrimination does not require intention to discriminate on the part of the employer. In a later submission the claimant’s representative submitted that the guidance notes furnished by the respondent were general in nature and make no reference to the position being interviewed for. The respondent had indicated at the November 2017 hearing that the Interview Board would not have been aware of the new Emergency Service Driving Standard and it was suggested that it was not credible that the interviewers were being asked to conduct an interview without any understanding or experience of the needs of the position. It was submitted that one must assume that more detailed notes were handed to the parties conducting the interview. It was argued that the profile of firefighters between 36-38 years do not appear to relate to the claimant’s station and that the notification of the training course provided that personnel must compete against each other based on longer service. It was submitted that it was disingenuous of the Council to submit data regarding fire fighters not located at the claimant’s station. It was submitted that the claimant was not asked any questions regarding the ADR training he had undertaken. It was submitted at the second hearing that the profile of age and length of service of fire service personnel submitted by the respondent demonstrated that it was quite obvious that longer service equates to higher age .It was submitted that the claimant was disadvantaged by the respondent’s refusal to disclose the interview notes of the candidates who competed against the claimant. The claimant’s representative submitted that both complaints were in time – that the decision of the Interview panel was an ongoing breach of the Act originating in the initial setting of discriminatory criteria for selection for the training course and that the ongoing failure to provide the claimant with the ESDS training was a continuing breach of the Act – it was submitted that the date of notification of the result of the interview on the 19th.May 2016 was well within the time limits set down in the Act. It was argued that the respondent’s defence to the complaint – that no candidate had completed ESDS training did not stand up as candidates who had commenced the course were in a position to say that they had started the training. It was submitted that the claimant was the youngest member of staff provided with advanced driver training in 2009 and that the claimant had an expectation of being trained in ESDS training – the view taken by the claimant and his colleagues based on the notification of the training course from the respondent was that whoever was selected would have a step up in the context of any future competitions. It was submitted that the notes of the claimant’s interview – which were the only notes he was allowed access to – were not comprehensive and failed to record that the claimant was asked at the interview by BD had he done ESDS training.
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Summary of Respondent’s Case:
The respondent denied the allegation of discriminatory treatment and contended that the training at issue would be provided to all fire service personnel over a rolling period of 5 years. It was submitted that the training was lengthy , running for approx.. 8 days in total , that it can only be delivered on a phased basis and not all fire fighters can be trained at the same time. It was submitted that the reason persons with longer service were given priority was that not all eligible candidates could train at the same time and the respondent had to put some “ mechanism/selection criteria in place. “Length of service was chosen in the interests of fairness”.It was contended that this selection criteria is not based on age and that there was no correlation between age and length of service. 2 personnel were chosen from each of the 6 brigades in the County and it was submitted that when nominees were sought from the claimant’s brigade that the claimant stated that he was not interested. It was asserted that the claimant only expressed an interest after the nominees were confirmed. It was submitted that no eligible member of staff will be precluded from the training course and that the claimant will be afforded an opportunity to train. Level 1 of the first tranche of the training commenced in early 2016 , was delayed for 2 months because of industrial relations issues and resumed in March 2017 with the final stage completed in April 2017.It was contended that the claimant had been provided with similar advanced training in 2009 and 2012 and with pump operator training in 2016. It was argued that none of the candidates for the driver post had completed the course at the time of the interview which was May 2016 .The selection criteria for assessing candidates was : Relevant Experience – Range /Depth Communication and People Skills Job Knowledge and Technical Competency Commitment, Positive Attitude and Enthusiasm. It was submitted that the qualifications for some Local Authority positions require a level of service and that this has no bearing on the age of a candidate. It was reasonable for the respondent to put some criteria in place in the interests of fairness and length of service was chosen. The next tranche of training will be rolled out in 2018. It was submitted that the criterion of length of service was a transparent , proportionate and pragmatic method for allocating places on the training course.It was contended that training was a principal element of the work of retained fire fighters and the nature of the service was such that all 56 personnel cannot be provided with the same training at the same time. An average of €4,000-€5,000 is spent on training every year and elements to be considered in organising and scheduling training include: The ability to delivery a fire brigade response Maintain a minimum crew roster Availablity of neighbouring fire stations and travel times Risks eg weather warnings , forest fire season Length of time away and distance from Station while training Distribution of specialist skills associated with certain equipment Distribution of specialist skills associated with particular risks It was submitted that an analysis of the profile of age, length of service and rank of all employees in the documents furnished demonstrated no correlation between these factors In a later submission it was contended that the complaint in relation to training was out of time . The respondent furnished the Commission and the claimant’s representative with a Guidance Document for Interview Board Members which was devised by the Local Government Management Services Board and used by all Local Authorities as a guidance document for Interview Board members. Copies of notes taken by the Interview Board for the 3 candidates who competed were submitted with the names of the other 2 candidates redacted. The respondent refused to furnish the claimant’s representative with the notes of the other candidates interviews because it was contended they could easily be identified by the claimant and the respondent was required to ensure that personal data of another individual is not disclosed other than to the data subject as provided for in data protection legislation .It was contended that the respondent would have to formally seek the permission of the other candidates to any such disclosure , that this would take some time and that it was not likely that any such permission would be forthcoming. A further document setting out the length of service profile of 6 fire fighters between 36-38 years including the claimant was furnished demonstrating that a) one candidate who was younger than the claimant would be nominated for the training course before the claimant based on length of service criteria and b) another candidate would be allocated a place ahead of 2 others who are both older but have less service . It was submitted at the second hearing that many jobs in the fire service require a number of years of experience before a candidate is eligible to compete. Age is not a determinant and a multitude of factors are considered in the selection process. It was submitted that the claimant was not disadvantaged as none of the competing candidates had completed the ESDS training. It was submitted that there was no record in the claimant’s notes of being asked about driving. It was contended that technical competency was just one of the many competencies explored and that experience and depth of competency would be assessed. It was submitted that only 2 of the 7 days ESDS training days had been completed by the successful candidate.
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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 have reviewed the evidence presented at the hearing and noted the respective positions of the parties. Access to Training
The claimant has asserted that he was discriminated on age grounds when the respondent adopted length of service as a criterion in determining first option on the advanced driver training course.I note that the claimant did not make a formal application and the respondent’s assertion that “ that the claimant only expressed an interest after the nominees were confirmed” was not disputed by the claimant. Section 34(7) of the Act provides “
I am satisfied that training and access to training constitute terms of employment and accordingly I find the defence of the respondent is specifically catered for in this Section of the Act and consequently I do not uphold the complaint. Discrimination at Interview While the claimant has vehemently argued that longer service equated with higher age , the respondent presented figures to support their contention that “ an analysis of the profile of age, length of service and rank of all employees in the documents furnished demonstrated no correlation between these factors”.The claimant submitted that the figures presented related to fire fighters based at other stations. While I fully acknowledge the claimant’s understandable grievance with the respondent’s refusal to disclose the interview notes to anyone other than the commission , a single page of notes from the file which did not include identification of the candidates was submitted and the claimant indicated that the commentary related to other candidates and the only reference to him was “ farming, Airport Fire Fighter and Standard Checks” and it was argued that driving was referenced with respect to the other candidates. The claimant was also furnished with the interview questions for the competition for “Driver/Mechanic” and submitted that he was unable to answer questions 1,6 & 7 by virtue of not having undertaken the ESDS course. The claimant was furnished with a copy of the notes of his own interview in the course of the second hearing and submitted that the notes were not inclusive as they failed to record that he had been asked by BD if he had completed the ESDS course and he replied that he had not. I have considered the respective arguments advanced by the parties - in light of the fact that the claimant had the benefit of advanced drive training previously and given that ESDS training was not a requirement for the job and the first tranche of graduates from this course did not pass their training until April 2017 ( 11 months after the interview ) the claimant’s assertion of being disadvantaged by virtue of being excluded from the course is not convincing and is not supported by the interview notes. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. Section 85A of the Act 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 she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters (EDA0917): “Section 85A of the Act provided 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. While those facts will vary from case to 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.”
In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
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Dated: 16th October 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea