ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026794
Niamh Ní Cheallaigh, IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 28/09/2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This complaint was submitted to the WRC on February 2nd 2020 and, in accordance with section 79 of the Employment Equality Acts 1998 - 2015, it was assigned to me by the Director General. Due to the closure of the WRC as a result of the Covid 19 pandemic, a hearing was delayed until September 28th 2020. On that date, I conducted a hearing and made enquiries, giving the parties an opportunity to be heard and to present evidence relevant to the complaint. The complainant represented himself and the respondent was represented by Ms Niamh Ní Cheallaigh of IBEC.
In complaints under the Employment Equality Acts, the parties are generally named in the published decisions. I recognise that in the case adjudicated upon here, there is a possibility that, if the parties are identified, uninvolved persons may also be identified and it is my view that this would be unfair to them. For this reason, I have decided that this decision should be anonymised.
In February 2019, in response to a public advertisement, the complainant applied for a vacancy for a role which I will refer to as an “Assistant Professor” in the respondent university. In May, he attended an interview and he made a presentation to the interview panel. On June 13th, the complainant discovered another advertisement for the role of Assistant Professor with some minor modifications to the previous role. As he had not received an outcome from his interview, he made enquires and on June 19th, he was informed that he had been unsuccessful.
On October 23rd 2019, the complainant became aware of the candidate who was appointed to the re-advertised role. He contends that the successful candidate did not meet the selection criteria to the degree that he did and, on this basis, he argues that he was discriminated against on the grounds of his age and disability.
This complaint was submitted to the WRC on February 2nd 2020, 10 months after the date on which the complainant claims that he suffered discrimination, May 2nd 2019. A preliminary issue therefore arises concerning the delay submitting his complaint.
Preliminary Issue – Timeframe for Seeking Redress
Section 77(5)(a) of the Employment Equality Act (“the Act) provides that,
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
Sub-section (b) of this section provides for an extension of that time limit to 12 months, where there is reasonable cause for the failure to submit the complaint within six months. Explaining the delay, the complainant said that, while he was unsuccessful at the interview he attended on May 2nd 2019, the discrimination occurred when the successful candidate was appointed after the job was advertised for the second time on June 13th 2019. The complainant said that he only discovered who the successful candidate was when he attended a conference on October 23rd 2019. It was when he made this discovery and, with his knowledge of this individual’s qualifications and experience, that he decided that he had been treated less favourably because of his age and disability. The complainant said that he delayed submitting his complaint after October 23rd 2019, because he moved house between then and February 2nd 2020.
It would not have been possible for the complainant to mount an argument to support a complaint of discrimination until he had knowledge of who he thought his comparator was. He claims that he had this information only on October 23rd 2019. In line with the findings of the Labour Court in Cementation Skanska and Tom Carroll, DWT0338, I find that there is a “causal link” between the complainant’s discovery of the identity of the successful candidate and the delay of more than six months before he submitted his complaint. Despite the further delay between the end of October 2019 and February 2nd 2020, as his complaint was submitted within the extended time limit of 12 months, I am satisfied that it is within the time limit for me to proceed with my enquiry.
Summary of Complainant’s Case:
In 1983, the complainant graduated from University with an honours degree in Communications Studies. He worked for 35 years across a variety of organisations, achieving considerable career success. In 2011, he commenced a PhD at Maynooth University and he worked there as an associate lecturer, delivering three to four modules each semester. He said that he received consistently positive feedback from students and was rated among the top 10% of teachers by the head of the business school. In 2015, the same year that he was awarded his PhD, the complainant completed a professional Certificate in Teaching and Learning. He said that from 2011 until 2015, he presented conference papers in his subject area, attended workshops in Ireland and abroad and, in 2016, he was the winner of the best development paper at the Conference of the British Academy of Management. In that year, he also co-authored a chapter in an academic publication. The complainant was a member of the accreditation board which developed the Masters’ Degree in Public Relations and Strategic Communications at the University and he was an associate lecturer on this course for two years up until 2017, when he stood down to recover from an injury. At present, he is a member of the governing council of the Public Relations Institute of Ireland.
Application for the Vacancy of Assistant Professor
In his submission to the WRC, the complainant provided a summary of the requirements for the role of Assistant Professor advertised in February 2019. The position was permanent and the advertisement stated that the candidate was required to have:
An honours degree;
A PhD in a relevant area, or be very close to submitting a PhD thesis for examination;
Evidence of research potential;
Appropriate higher level teaching experience;
A broad theoretical and practical knowledge;
Skills to work in a multi-disciplinary academic environment.
On May 2nd 2019, the complainant attended a two stage assessment consisting of a 30 minute presentation to 20 academics and an interview. He was not informed of the outcome of this assessment and on June 13th 2019, he saw the position of Assistant Professor re-advertised. Unlike the first advertisement, which was a permanent contract, this was for a fixed-term of three years but the requirements were more or less the same as the vacancy advertised in February, but with some slight variations:
An honours degree;
“Ideally,” would have completed a PhD in a relevant area, or be very close to submitting a PhD thesis for examination. The word “ideally,” was not used in the previous advertisement;
Evidence of research potential;
University teaching ability rather than “appropriate higher level teaching experience;”
A broad theoretical and practical knowledge;
Skills to work in a multi-disciplinary academic environment;
A minimum of three years’ relevant senior level industry experience. This criterion was not included in the February version of the job requirements.
The complainant outlined five specific concerns regarding the process followed by the respondent when considering him for the role he applied for in February 2019:
1. Failure to Communicate the Outcome of the Interview
When he discovered the June advertisement, the complainant sent an email to one of the academics who attended his presentation on May 2nd and who was also on the interview panel. He didn’t get a reply, but on June 19th, he received “by email, a perfunctory 2 sentence letter” telling him that his application was unsuccessful. He described the failure of the respondent to properly notify him of the outcome of the interview as the first flaw in the assessment process. In the email of June 19th, the sender advised him that she thought a letter had already been issued. In contravention of the respondent’s procedure for notifying candidates of the outcome of interviews, the complainant said that he was not offered an opportunity to contact the chairperson of the interview panel for feedback.
2. Failure to Provide Interview Notes
On June 20th 2019, having been informed that he had not been selected for the role, the complainant requested details of his interview notes. He got no reply and repeated his request on June 27th, following which he was informed that the chairperson of the interview panel and the head of school were on leave and would not be available until July 15th. This was 10 days after the closing date for applying for the re-advertised position.
The complainant did not receive the assessment forms that, in accordance with the respondent’s interview procedures, should have been completed by each person on the interview panel. He claims that this was the second problem with the assessment process. It is a concern to him that he was not provided with the notes completed by the members of the panel before the chairman and the head of school returned from annual leave. In this regard, the complainant referred to the Labour Court case of the National Museum of Ireland and Dr Anne O’Dowd, DEE-033 in which the chairman commented on the practice of destroying interview notes, saying that such notes are “of great assistance to the Court when investigating allegations such as the complainant’s.” This guidance was followed in the case at the Equality Tribunal of Mr Gerard Reynolds and Limerick City Council, DEC-E2003-032, where the Equality Officer recommended that,
“…in all future competitions, the respondent should retain the notes made by interview board members during the course of an interview so that in the event of an allegation of discrimination, these notes can be produced.”
The complainant suggested that the case at the Equality Tribunal of a Teacher and a National School, DEC-E2014-097, is relevant, as the Equality Officer, Mr Bonnlander, described as “irregular,” the decision of interview board members to dispose of their interview notes. Mr Bonnlander noted that “it is trite law by now that such actions constitute poor practice in hiring and promotion processes.”
3. Inadequacy of the Interview Assessment Note
Describing it as the “third flaw” in the process, the complainant claims that the inadequacy of the assessment form provided by the respondent is evidence that he could not have been treated fairly. On July 24th 2019, he received a copy of one interview assessment form, that of the chairman, which he provided at the hearing of this complaint. The note has comments beside five criteria:
1. Education and training: BA. PhD.
2. Work experience: Extensive professional experience.
3. Interpersonal skills: Good.
4. Interest / motivation: Good.
5. General: Strong performance at interview with evidence of engaging in teaching but did not demonstrate sufficient depth in relation to a research plan, outputs and publications.
Under the heading of “Summary Comments,” the complainant was deemed to be “not appointable.”
The complainant contends that the criteria on this assessment record do not mirror the criteria for the job specification. For example, there is no reference to evidence of research potential, higher level teaching experience or senior industry contacts. The complainant submitted that the Reynolds v Limerick City Council case referred to above provides guidance on this issue, where the Equality Officer recommended that,
“…the respondent should draw up the criteria to be adopted by the interview board at the same time as the competition is being advertised. This means that the criteria is drawn up in advance of the respondent or the interview board having sight of applications for the post being advertised. I consider that this provides greater openness and transparency in the interview process.”
In this case, the complainant suggested that the Equality Officer is recommending that the assessment criteria considered by the interview panel should relate to the criteria in the job specification advertised.
The complainant said that there was no scoring system and no score allocated to any of the criteria listed on the form. No scores were allocated to his teaching presentation or to the interview criteria, references, qualifications or experience. In his view, “it would therefore not have been possible to compare these characteristics objectively or rigorously with other candidates in any fair way.” The assessment has no mention of the fact that the complainant obtained a Certificate in Teaching and Learning and no reference to his five years’ experience of higher level teaching. There was no reference to the publication of five conference papers or the recommendations he received from two senior academics.
Referring to the comment on the form that he “did not demonstrate sufficient depth in relation to a research plan, outputs and publications,” the complainant said that the job specification makes no mention of this high bar of “sufficient depth,” and that this more demanding criterion is normally associated with a higher grade lecturing position. He said that at the interview, there was “very little discussion or any probing questioning” of his research experience that would suggest that it was inadequate. As the successful candidate does not have a PhD and, at the time of her interview, had not commenced a PhD, the complainant strongly suspects that “this more demanding criteria” which was not listed in the job specification was not applied to her application. He claims that this would result in him being treated less favourably.
Summarising his concerns about the retention of notes of his interview, the complainant said that there were four people on the interview panel and five weeks after requesting their notes and three weeks after the closing date for the re-advertised position, he received just one assessment form. As only one form was provided, he claims that the assessment forms completed by the remaining three members of the interview panel were either not completed or were destroyed; both of which are not in line with best practice.
4. Invitation to Make a Late Application for the Re-advertised Role
When he received the chairman’s assessment form, the complainant said that he exchanged some correspondence with the human resources (HR) department and he was offered the opportunity to apply for the vacancy advertised in June, even though his application would have been late by at least 20 days. He said that it would have been quite unusual for his application to be considered and it would have raised questions of fairness for the other applicants. He said that as he had “previously been classified as non-appointable,” he decided that it would be a waste of time to take any further action.
5. The Appointment of the Successful Candidate
The complainant concluded by addressing what he considered to be the fifth flaw in the interview process, the appointment of a person he considers to be “far less qualified, less experienced and much younger” than him. The complainant said that he is not questioning the integrity of the person appointed to the job and he extended good wishes to her for her success in the post. He submitted however, that the candidate who was appointed had not commenced work on a PhD, had no record of academic publications and had no appropriate third level teaching experience. As, in his view, she had not met these basic requirements, the complainant suggested that it was unlikely that, at the time of her interview, she could have demonstrated sufficient depth in relation to a research plan, output and publications, the reasons he was considered to be not appointable. He said that he suspects that this person was appointed “because the methodology used was ad hoc and did not involve a scoring system and allowed unfair comparisons to be made.” In this regard, the complainant referred to the earlier referenced precedent of a Teacher v a National School and the finding that, based on prima facie evidence, the candidate was discriminated against on the grounds of age. This occurred because, according to the Equality Officer, the interview board rated both the successful candidate and the complainant as equally qualified, even though the complainant was more qualified and experienced.
Claim of Discrimination
At the hearing, the complainant said that the flaws in the process followed by the respondent when it considered his application are of sufficient significance to establish on a “prima facie” basis, that discrimination has occurred, in contravention of section 85A of the Act. He said that, on Wednesday, October 23rd 2019, he became aware for the first time that the position for which he had applied had been filled by a person who he claims is “far less qualified, less experienced and much younger than I and did not have a disability similar to mine.”
Because of the difference in qualifications and experience between him and the successful candidate, the complainant claims that the respondent did not weigh his qualifications and experience in the same way it weighed the qualifications and experience of the winning candidate. He argued that they did not have a method in place for doing so. He said that “the evidence shows that the processes the respondent applied to my application were flawed, were at odds with the respondent’s own policies and were inadequate for the task.” He said that “these flawed processes enabled discrimination to occur, intentional or otherwise, which was expressed in the decision to appoint the winning candidate.”
The complainant’s contention is that he was treated less favourably than the successful candidate for the position of Assistant Professor because she was afforded flexibility in relation to meeting the criteria for the role, when he was not. He claims that he experienced discrimination because of a disability he was suffering from at the time, and because he was aged 57 when he applied. At the hearing, the complainant described a congenital condition that affects his left arm. At the time of the interview in May 2019, he said that his arm was in a sling because he was recovering from surgery. At the hearing of this complaint in September 2020, he wore a therapeutic support sleeve.
Concluding his submission, the complainant said that he consulted widely before he applied for the post, he obtained references and this resulted in him exposing his application to his peers. He said that the fact that a candidate with less qualifications and experience was appointed to the role had an impact on his standing in a small, professional community. Whether intentional or otherwise, he claims that the respondent has “failed utterly to employ processes that are designed to ensure fairness and to avoid such discriminatory occurrences.”
Summary of Respondent’s Case:
Assessment for the Role Advertised in February 2019
In a written submission, Ms Ní Cheallaigh provided a background to the assessment for the role of Assistant Professor which was advertised in February 2019. Most of the details have been set out in the previous section by the complainant. However, some further information was submitted at the hearing.
Ms Ní Cheallaigh said that three candidates were invited to attend for interview in May 2019, including the complainant. A candidate was selected as the most suitable, but that person did not accept the position. In June, a decision was made to advertise a new role, again with the title of Assistant Professor, the purpose of which was to expand the pool of candidates. The role was to be for a fixed-term of three years and had “a slightly amended job description.” The advertisement described the successful candidate as a person who,
“…must have an honours degree and ideally would be expected to have completed a PhD in a relevant area (or be very close to submitting a PhD for examination), will have shown evidence of research potential, respondent teaching ability and a minimum of three years’ relevant industry level expertise. Successful candidates will be expected to play a prominent role in the development and delivery of the School’s taught programmes, to undertake high quality research leading to national and international publication.”
The advertisement is clear that while a PhD was desirable, it was no longer a critical requirement.
When the complainant contacted the respondent about this newly advertised post, it became apparent that, due to an error, he had not been informed of the outcome of his assessment on May 2nd. On June 19th, he was informed that he “had not been deemed appointable for the position of Assistant Professor.” The complainant contacted the HR department requesting his interview notes and he was informed that arrangements were being made to send them to him. He was also offered the opportunity to speak with the chairperson of the interview panel. On July 24th, a copy of the interview notes was sent to the complainant and he was invited to submit an application for the re-advertised post, even though the closing date had passed. As we know, the complainant declined this offer.
On October 29th, the complainant wrote to the HR director, alleging that he had been discriminated against the on the grounds of disability and age. The HR director replied informing the complainant that the two competitions for the role of Assistant Professor were separate competitions with different criteria. He also explained why the complainant was not appointed:
“Your application was deemed to meet the shortlisting criteria and you attended interview for this position 2nd May 2019 (sic). As part of the interview process, each member of the interview board was provided with your application, including the full list of publications you provided for review. The hand written notes only refer to PhD (achieved in your case) and peer-reviewed academic publications, as an important sub-set of all publications.
During your interview, you were asked about your research plans, which you articulated. However, the interview board concluded that, at interview, you did not demonstrate sufficient depth in relation to your on-going research plans, or the outputs and publications which would flow from those plans, compared to the requirements for the post.”
The HR director referred to the fact that the complainant had been invited to apply for the re-advertised post, and that he had declined:
“You were invited to apply for this position, as per email correspondence to you from the HR Department dated 24th July 2019. This was a separate competition to the competition for job reference #1128. As you decided not to apply for job reference #BC0703, your application was not considered for this position.”
The Burden of Proof
The respondent’s position is that the complainant has not shown that, on the basic facts, he was discriminated against because of his age or disability. He has failed to establish a “prima facie” case of discrimination because he has not submitted any evidence to demonstrate that he was treated less favourably than any other candidate. He has also failed to provide details of any comparator on which he seeks to rely to ground his claim of discrimination.
In this regard, Ms Ní Cheallaigh referred to the outcome of the Labour Court decisions in the following precedent cases:
ICON Clinical Research and Tsourova ADE/05/14
Southern Health Board v Mitchell,  ELR 201
Margetts v Graham Anthony & Company Limited EDA 038
Melbury Developmemnts Limited v Arturs Valpeters, EDA0917
The Respondent’s Position Regarding the Allegation of Discrimination
The respondent is an equal opportunities employer and prides itself on not discriminating against any employee or job applicant. Ms Ní Cheallaigh claimed that neither the HR department or the interview panel was made aware that the complainant had a disability when he applied for the role. She said that the chairperson of the interview board recalls that the complainant had his arm in a sling on the day of the interview, but no member of the panel commented on this. Their position is that if the complainant is asserting that having his arm in a sling is a disability, then it does not come within the scope of the definition of disability set out at Section 2 of the Act.
Ms Ní Cheallaigh submitted that the Court of Justice of the European Union (CJEU) addressed “the concept or true construction of disability in the case of HK Danmark acting on behalf of Ring v Dansk almennyttigh Boligsdelskab, C-335/11. Here, the CJEU was called on to provide guidance to differentiate the concept of disability from sickness:
“The concept of ‘disability’ in the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one…On the other hand, an illness not entailing such a limitation is not covered by the concept of ‘discrimination’ within the meaning of Directive 2000/78.”
This ruling highlights three differentiating aspects of disability:
1. It entails a condition caused by an illness medically diagnosed as curable or incurable;
2. It results in mental or physiological impairment;
3. It may hinder the full and effective participation of the person in professional life.
It is the respondent’s case that the grounds advanced by the complainant, the fact that his arm was in a sling at the time of the interview, does not constitute a “disability” within the meaning of the Act. Further, and in the alternative, Ms Ní Cheallaigh submitted that the complainant did not have a named disability and the respondent was not on notice of any such disability during the recruitment process. For this reason, Section 16 of the Act, which requires an employer to take appropriate measures to accommodate a person with a disability, does not apply in this case.
Regarding the complaint of discrimination on the ground of age, the respondent’s case is that age was not used as a selection criterion, nor was it referred to in the job description or the advertisement. The application form does not include age as a field for completion and the complainant did not volunteer his age in his application. The respondent was not aware of the complainant’s age at the time of his assessment for the job.
The respondent’s case is that the complainant did not apply for the role of Assistant Professor advertised in June 2019, and therefore, he could not have been discriminated against. That said, for a claim of discrimination on the age ground to have any substance, the candidate appointed to the role would have to have been significantly younger than the complainant. The candidate appointed to the role is age 56, which is similar to the complainant’s age.
The respondent refutes the complainant’s allegation that he was not appointed because he was “deemed not to have met criterion that was not specified in the documentation.” It was the duty of the interview board to assess each candidate’s evidence of research potential and it is the prerogative of the board to determine how such an assessment is carried out. For this reason, it was entirely appropriate for the candidates to be asked about future research plans. It was up to each of the candidates, all of whom were asked the same questions, to interpret what was required, to demonstrate evidence of research potential and to answer the questions posed by the interview board about that evidence. Ms Ní Cheallaigh noted that there was consensus among the members of the interview board concerning the complainant’s failure to demonstrate sufficient depth in relation to his research plans and how this would affect his outputs and publications.
The complainant declined two invitations to speak with the chairman of the interview board to be provided with more detailed feedback.
Conclusion of the University’s Case
The respondent’s position that the two competitions for the role of Assistant Professor advertised in February and June 2019 were two completely separate competitions. This was outlined to the complainant in the letter from the director of HR on November 15th 2019. A copy of this letter was submitted in evidence. The complainant was not treated less favourably than the successful candidate in the June competition because he did not submit an application in this competition, despite being invited to do so on July 24th 2019 by a member of the respondent’s HR department. Ms Ní Cheallaigh argued that the complainant cannot claim to have been treated less favourably than another candidate in a competition that he did not apply for.
Aside from the respondent’s argument that the complainant’s case is out of time, Ms Ní Cheallaigh asserted that the complainant has not discharged the evidential burden to establish a “prima facie” case of discrimination. Having made this assertion, based on the arguments set out above, the respondent refuted any allegation of discrimination on the grounds of age and disability and asked that I dismiss the complainant’s claims.
Findings and Conclusions:
The Legal Framework
The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”).
“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”
At sub-section 6(2)(f) and (g) respectively, the “the age ground” and “the disability ground” arelisted as two of the nine discriminatory grounds.
At the hearing on September 28th 2020, and on the complaint form that he submitted to the WRC, the complainant claims that he was not appointed to the role of Assistant Professor because of his age and a disability he said he had at the time of his assessment.
The Burden of Proof
The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.
“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than a younger person and / or a person without a disability.
Regarding his allegation of discrimination on the age ground, the complainant said that he thinks that the successful candidate is aged around 45, compared to his age of 57 at the time of the interview. Ms Ní Cheallaigh said that the successful candidate is 56.
At the hearing, in response to questions from me, the complainant said that he suffers from a congenital problem with his left arm, which he considers to be a disability. He said that he broke this arm in 2017 and has had a number of surgical procedures since then. He said that his condition never prevented him from having a normal working life and he has no problem doing his job.
On behalf of the respondent, Ms Ní Cheallaigh referred to the Labour Court decision in Mitchell v Southern Health Board,to support her contention that, based on the primary facts, no discrimination has occurred. Describing the evidential burden on the complainant in Mitchell, the Labour Court held that,
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 is only if those 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 is no infringement of the principle of equal treatment.”
The Primary Facts
At the hearing of this complaint, the following primary facts emerged:
1. In May 2019, along with two other candidates, the complainant was interviewed for the role of Assistant Professor. One of the candidates was offered the position, but he or she declined the offer.
2. In June 2019, the complainant discovered that the same job was re-advertised, with some amendments to the original job specification.
3. Later in June, he was informed that his application had not been successful. The failure to inform him before the job was re-advertised was described by the respondent as “an error.”
4. In July, he was invited to make a late application for the re-advertised position, but he decided against this course of action, considering it to be a waste of time.
5. In October 2019, the complainant discovered that a person he considers to be less qualified and less experienced than him was appointed to the role.
6. The successful appointee is aged 56 and the complainant is 58.
7. The complainant has a congenital disability that affects his left arm. This has never had an impact on his ability to work.
The opening section of the preamble to the Employment Equality Act 1998 tells us that the legislation is derived from certain EU directives on equal pay for men and women and equal treatment as regards access to employment. The objective of the legislation is to make “further provision for the promotion of equality between employed persons.” The Act goes on to provide that, in respect of access to employment and terms and conditions of employment, employers must not discriminate under nine specific headings, the “discriminatory grounds,” which, for our purposes here, include the criteria of age and disability.
The complainant’s case is that he is better qualified and has more relevant experience than the candidate appointed to the job of Assistant Professor in the Autumn of 2019. He argues that he was treated less favourably than the successful candidate because he is older and has a disability.
Before considering the grounds of discrimination, I wish to address the concerns raised by the complainant regarding the assessment process. Having submitted an application in February 2019, the complainant was interviewed in May, but he heard no more until he saw the same job advertised again in June. In a competition between just three candidates, to neglect to confirm to one of the unsuccessful candidates that he wouldn’t be offered the job is unprofessional and disrespectful. The sending of a two-line email further compounded the complainant’s sense of being treated dismissively. A phone call from the chairman of the interview board with a proper explanation of the reasons why he wasn’t offered the job may have been adequate to demonstrate to the complainant that his application was properly considered. It may also have spared him from making this complaint. I do not accept as sufficient the invitation to the complainant to seek a conversation with the chairman and it is my view that this initiative should have been actioned by whoever was responsible for running the recruitment campaign.
In June 2019, when the job was advertised again, the complainant declined an invitation to apply. I fully understand his rationale here; no doubt he didn’t want to risk being rejected again, but the effect was to place him outside the competitive process. He complained at the hearing that his qualifications and experience were not weighed in the same way as those of the winning candidate; however, the successful candidate was considered in competition with the applicants who applied for the role advertised in June 2019 and the complainant was not in that cohort. It is my view that he cannot claim to have been treated less favourably than the successful candidate when he was not in the same competition as her.
I listened to the evidence of both sides concerning the assessment of the complainant’s suitability and I agree with the complainant that the chairman’s note does not achieve the standard of the record of interviews generally seen in the public sector recruitment process. I make this comment concerning the first competition in which the complainant was a candidate and in which the person who was eventually appointed was not a candidate. I note the legal precedents that were cited by the complainant and I find that they are relevant to the competition in which he was assessed, but I cannot make a bridge between that process and the later one which resulted in the appointment of a candidate to the role.
I wish to address the case made by the complainant that he was treated less favourably because of his age and disability. On behalf of the respondent, Ms Ní Cheallaigh said that the successful candidate is two years younger than the complainant and his impression that she was more than 10 years his junior is therefore incorrect. It is my view that an age difference of two years between two people in their mid-50s is not sufficient to ground a complaint of age discrimination by the older candidate.
Secondly, the evidence at the hearing demonstrated to me that the respondent and the members of the interview panel had no knowledge that the complainant has a disability. I heard that, at his interview in May 2019, his left arm was in a sling. At the hearing on September 28th 2020, he wore a support sleeve and, until I asked him about his disability, my impression was that he was recovering from a sprain or a broken arm. Having heard his evidence, I fully accept that he suffers from a disability, but it is my view that this was not evident to the interview panel and that it in no way contributed to the failure of the respondent to offer him the job of Assistant Professor.
I have reached a conclusion that the complainant and the candidate who was appointed to the role of Assistant Professor were not assessed in the same competition. The successful candidate is therefore not a valid comparator in the complainant’s case that he was subjected to less favourable treatment. From the evidence he presented concerning his age and disability, I find that the primary facts are not sufficient to show that he was discriminated against. It is my view that it is not possible for the complainant to discharge the burden of proof which would lead me to assume that he was treated less favourably than the successful candidate and I find that he has not done so. The responsibility for proving that discrimination has not occurred does not now shift to the respondent.
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 concluded that the complainant has failed to discharge the burden of proof which requires him to set out the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that his complaint under the Employment Equality Acts is not well founded.
Dated: 12th November 2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Discrimination, disability, age