Complainant

Respondent

Parties

Jackie  Ui Chionna

University Of Galway

Representatives

SIPTU Representative

IBEC Representative

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-00067828-001

02/12/2024

The Complainant alleged she was discriminated against on the age ground in relation to her application for the post of Part-Time Lecturer in History (Ireland since 1750), School of History and Philosophy, The Respondent denied the complaint.

The Complainant’s claim is that she was discriminated against by the Employer on grounds of age in relation to her application for the position of Part-Time Lecturer in History (Ireland since 1750), School of History and Philosophy, Contract Type A, Part Time 0.4FTE, Specific Purpose Contract (a 3.5 year post).

The date of the discrimination is the 6th June, 2024.

The named Comparator is the successful candidate, Dr. X  (name redacted).

The claim was referred to the Workplace Relations Commission on the 2nd December, 2024.

The Complainant commenced employment with the Respondent  in 2004 as a Part Time Teaching Assistant.

The Complainant interviewed on the 6th June, 2024 for the position of Part-Time Lecturer in History. This was a Contract Type A, Part time, 0.4FTE Specific Purpose Contract for a period of a 3.5 years, to provide teaching cover for Dr. Y  (name redacted) who had been appointed to the role of Vice-Dean for Equality, Diversity and Inclusion and Staff Development in the College of Arts, Social Sciences and Celtic Studies for a period of 4 years. Prior to the Part-Time 0.4FTE contract for a period of 3.5 years being advertised, in Semester 2 of the academic year 2023/24 a teaching “buy-out” post to cover some aspects of Dr. Y’s  teaching was advertised in-house.  The Complainant was one of two candidates chosen to cover some of that teaching. She taught tutorials on a Seminar course on Women’s Suffrage and Activism, and a lecture module on the History of Childhood and Youth in Ireland, 1800-Present. The Complainant successfully delivered those modules and graded assignments in relation to same. Dr. Y  kindly agreed to be one of her referees when the more substantive 0.4FTE post was formally advertised.  It should be noted that this was a Fixed Term Contract for 3.5 years that had an end date as Dr. Y would have returned once her term as Vice Dean was over.    There was no full time role here. 

On the 20th June 2024 the Complainant was notified by HR that “The post has now been offered to another candidate, but I wish to let you know that you were ranked as a reserve candidate for the post and the final decision of the Board of Assessors was not easily reached”.

 The Board of Assessors offered the following interview feedback:

“Dr Uí Chionna was successful in her application and was ranked sixth. She has many years of teaching experience. The topic for her proposed module was very appropriate and would likely be attractive to students in the discipline. The description would have benefited from a clearer account of the weekly structure of the module. The proposal for additional modules could have been more well developed. She has a good research profile with a good record of publication outputs. She articulated clear plans for interesting future research projects.  Dr Uí Chionna has recently been shortlisted for a prestigious biography prize.  The Board commends her strong record of public outreach and community engagement.  There was scope for improvement in the structure and timing of the presentation. The Board believe Dr Uí Chionna could perform the duties of the post to a very good standard.”

On the 9th July, 2024 the Complainant received an email from Head of Department of History, Dr. Róisín Healy, announcing the successful candidate to all staff, and noting that “The assessment panel was very impressed with her approach to teaching, the main focus of her post, as well as her research. Dr. X will be with us on a part-time basis for the next 3.5 years.

On the 11th July, 2024 the Complainant requested the marks awarded to her at the interview, and notes from the interview board, and confirmation of the number of candidates who presented for interview.   The response from HR “ I can confirm five candidates ranked above you at interview. Six candidates were interviewed for the role. Please note below scores as per the interview report form which is the only report received by HR following interview and encompasses the total score by the interview panel. “

The Complainant submitted the following assessment of her marks and comparison with Dr. X.

Competency 1 - Excellence in Teaching  - Weighting 40, marks awarded 30 - The Complainant is an experienced academic with over 20 years teaching and research experience. The successful Comparator Dr. X  completed her PhD in 2020.  The Comparator has no Teaching Excellent Awards – the Complainant has two awards in teaching.

Competency  2 -Excellence in Associated Research Weighting 15, marks awarded 12  -   the Complainant has been the recipient of four research Fellowships, including Fellowships at Oxford and Cambridge both of which rank among the top 5 universities in the world. She has also been awarded the Bodleian Fellowship and no other member of the history staff at the University have been awarded this during her 20 years there.   The Comparator has no fellowships during her career to date.  At the time of interview the Comparator had not yet published her first book, which was eventually published in January 2025, six months after her appointment.  The Complainant has published three books, two of which have been shortlisted for major publication prizes, nationally and internationally. Therefore, it is not plausible for the Comparator to have scored higher than the Complainant.  In fact the Complainant contends the marks awarded to her do not reflect her excellence at a score of 12.

Competency 5:  Collegiate & Community Contribution  - Weighting 15, marks awarded 11 - the Complainant again has vast experience of 40 years as an older candidate would have to have the advantage.  The Complainant’s contribution to community and college as a historian has been exceptional.  She is well known in Galway having frequently participated in events of relevance. We contend the Comparator could not have such experience.   Again, it is not plausible for the Comparator to have scored higher than the Complainant.

Competency 3:  Personal Effectiveness – Weighting 5, marks awarded 4 – the Complainant has extensive management experience prior to joining the University. She has delivered major research projects with well acclaimed outputs during her time in the History Department.  She has delivered three books during the period 2007 – 2023 along with performing her teaching duties and participating in all aspects of university life. it is not plausible for the Comparator to have scored higher than the Complainant.

Competency 4:  Leading Others – Weighting 5, marks awarded 4 –  During her time in University of Galway the Complainant has led many projects from conception to delivery, and have frequently been responsible for co-ordinating and working with other participants. She has employed many different strategies in her  teaching activities to communicate with and encourage students to engage with the subject at hand.It is not plausible for the successful Comparator to have scored higher than her on Personal Effectiveness given her relative youth in comparison with the Complainants.

Competency 6: Strategy & Vision - Weighting 5, Marks Awarded 4

The Complainant conceived of the “When We Were Young” project and delivered it from concept to successful awardee under the Teaching Council of Ireland’s Scholar in Residence Scheme, and its eventual piloting in two schools in Galway City.

It is not plausible for the successful candidate to have scored higher than her on Personal Effectiveness given her relative youth in comparison with the Complainants.

Public Presentation & Performance in interview – Weighting 15, Marks Awarded 11 - This mark is a subjective assessment by the panel. Nevertheless, the Complainant contends that the marks awarded do not reflect her actual performance on the day.  She is an experienced presenter having delivered countless public lectures in person and online, she has presented on radio and on television in both Irish and English over the course of four decades and it is her opinion that she performed better the assessment portrays.

Notes on Marking Scheme - Since we have not being provided with the scores of any of the other candidates who applied for the post we can only draw comparisons between the Complainant’s own marks and conclude that the successful Comparator scored higher. Simple arithmetic demonstrates that she must have scored higher than the Complainant on the most weighted competencies 1, 2 & 5.  If she outscored the Complainant  on competencies 3, 4 & 6 alone, then she would have just 3 marks more than the Complainant, which would not be enough to place her above all the other candidates. It is unlikely, however, that the Comparator scored a perfect ‘5’ in those competencies.

The most she could have outscored on Performance at Interview was by 4 marks, but again that would imply a perfect score of 15, which is not plausible.

She must, therefore, have outscored the Complainant  in one or all of the most weighted contingencies, and we have laid out clearly in this submission why that is not reasonable and does not stand up to scrutiny and infers discrimination on the ground of age.

The only information on the Comparator available is that from the University website and this cites the Comparator as having two years experience at best all of which is part time.  Therefore, we contend that the Complainant was discriminated against on grounds of age.    The Complainant was 62 at the time of the interview, the Comparator is at most in her late 20s/ early 30s.

On the 21st July 2024 the Complainant emailed the Head of Department, Dr. Róisín Healy (who had also been on the interview board for the position)  invoking the First Stage of the Grievance Procedure in relation to the interview. She stated that having requested and received her interview marks “ I do not believe that the marks awarded reflect my professional achievements and performance in the various categories evaluated under the marking scheme”, and asked that a meeting be convened as soon as possible.

The Complainant was eventually brought through Stages 1 of the Grievance Procedure after some delay and confusion.    The feedback from the meeting was that the Complainant seek further feedback from the Chair of the Board and HR would facilitate this meeting.  The meeting took place on the 2nd October, 2024 and the Complainant was told that this was not the forum for her complaint. 

On the 2nd October, 2024 the Complainant submitted a Freedom of Information request – which was partially granted on the 23rd October, 2024.  The Complainant received less documentation here than what she had already received post interview. She did not get any information in relation to the other candidates.

On the 24th  November 2024 the Complainant emailed Alison Forrestal, Head of School of History and Philosophy and copied Josephine Hynes, Director of HR and Sinead Wynne, Deputy Director of HR  attaching Form EE2 (Employment Equality Acts, 1998 to 2004 Section 76: “Right to information”) and Complainant’s request for information from the respondent)  and Form EE3 (Employment Equality Acts, 1998 to 2004 Reply to a request for information) On 27th November Prof. Forrestal replied “Thank you for your email. I have referred it to HR and am awaiting a response.” No reply was ever received to the email from Ms. Hynes or Ms. Wynne.

On the 11th December, 2024 the Complainant received an email from Prof. Forrestal (Head of the School of History and Philosophy) who stated that her request for information on the ages of the other applicants had "been referred to Aoife Cooke, Head of EDI in the VP'S Office for EDI, and she should be in touch with you shortly, if she has not been already".  No reply was ever received.

The Complainant is at a financial loss of €84,000 - €134,000 depending on where she would have been placed on the salary scale had she secured the Fixed Term Contract.

Section 8.—(1)(d) In relation to—

(d) Promotion or re-grading

An employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 8(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) The employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

Section 85 (a) of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination.  It requires the Worker to establish, in the first instance facts upon which he or she can rely in asserting that he or she has suffered discriminatory treatment.  It is only where such a prima facia case has been established that the onus shifts to the Employer to rebut the inference of discrimination.

In Mitchell -v- Southern Health Board[2001] ELR 201, the Labour Court 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”.

In Melbury -v- Valpeters EDA/0917, the Labour Court elaborated further that Section 85A: “Provides 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. What those facts are will vary from case to case 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”.

The Labour Court in Director of Public Prosecutions -v- Robert Sheehan (EDA0416) found that: “In order to shift the probative burden it is not necessary for the Complainant to adduce direct evidence of discrimination on either the gender or the age ground”.

In the Labour Court case of O’Higgins v UCD EDA 131 [which was upheld by Cooke J in the High Court [2013] IHEC 508] the Court gives a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:-

It is for the Worker to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

If the Worker discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

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

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.

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.

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.

Where a prima facie case of discrimination is made out and where the Employer fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

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 the Equality Tribunal case of Dr Anne Cleary and University of Dublin DEC-E2018-009 –  the Tribunal it was held “I do put some store in the evidence from the Complainant’s expert witness Dr B., that since Senior Lecturer is a promotion mostly based on prior contribution, older candidates should normally have an advantage.  This argument makes cogent sense, and makes the reverse dynamic in play here, whereby candidates were proportionally more successful the younger they were, vulnerable to an assumption of discrimination on the ground of age. The prima facie case which I am satisfied the Complainant has thus established is further underpinned by examining the career of the  younger female academic whom the Complainant chose as her Comparator….had only secured research funding of about €5,000, had not employed any postdocs, had significantly fewer publications than the Complainant, had not been awarded a teaching award…..Despite this differential in achievements Dr. D had retained her mark of “excellent” in teaching an learning which made it possible for her to obtain promotion to Senior Lecturer. ….It was found that the  Respondent did discriminate on grounds of age and  the Respondent was ordered to promote the Complainant to Senior Lecturer retrospectively with all benefits and awarded the Complainant €30,000 compensation.

We contend that the facts of the instant case are similar.   The Complainant has vast experience in all aspects of the competencies in the interview than the successful Comparator.

In the case of A Job Applicant and A Sporting Organisation ADJ-00005822 the complaint’s claim was the Respondent discriminated against him on the grounds of his age in terms of access to employment.    He was 58 years at the time and the successful Comparator was approximately 44 years of age.  The Adjudication Officer sought the application and CV of the successful candidate following an Order made by him.   The Adjudication Officer found “I am satisfied that in the within case, the difference between the Complainant and the successful candidate really are significant, having had sight of both of their applications forms and cv’s in evidence, and the successful candidate was indeed significantly less qualified than the Complainant.  This, together with the age difference of about 14 years between them, with the Complainant being the older candidate, does indeed establish facts from which age discrimination may be inferred….The Adjudication Officer ordered that the respondent pay the Complainant €6,500 in compensation for the effects of the discrimination which was  half the maximum award of €13,000 he could make taking into account statements made by the Complainant during the hearing  that he had not taken the case for money, his comfortable position                                            as a senior international sports administrator and the fact the Respondent is a non-profit volunteer organisation with limited resources. 

We contend that the instant case in that the Comparator is significantly less qualified/experienced than the Complainant. Furthermore, the age difference is this case is approximately 30 years.

In the Labour Court case Monaghan Vocation Education Committee and Carroll – EDA0415 the Complainant was not selected in a competition the Court found that based on the evidence heard it was satisfied that the Complainant had established certain facts which may led the Court to infer that there had been discrimination against the Complainant on grounds of her age.  The Court concluded that the explanations given by the respondent did not rebut the inference of discrimination and found that she was discriminated against on grounds of age and directed the respondent to backdate her appointment to the post to the same date as those appointed following the interviews.

In the instant case the respondents have failed to show how the Complainant who had taught two modules on the actual course prior to the position being advertised could possibly have not scored higher than the Comparator who had only two years part time in teaching and indeed in relation to the other competencies also. 

In the case of Van Colsen v. Land Nordrhein-Westfalen [Case C-14/83, 1984] the principle was established that compensation awarded in discrimination cases should be “adequate in relation to the damage sustained” in order to be “effective and to ensure that it has a deterrent effect”.

In meeting the required burden of proof as required by Section 85 (a) we submit that the Adjudicator is required to consider the following facts:-

The failure of the respondent to respond to Form EE2 – Section 76 – “Right to Information” Complainant’s request for information from the respondent and EE3 – Reply to Request for Information Forms submitted by the Complainant on the 24th November, 2024 leads to an inference of discrimination.

The Respondent has refused to give me information on the gender, age, qualifications & experience of the other candidates, and the marks awarded to each candidate in each of the assessment categories evaluated by the Board. They also refused to give the Complainant anything other than the interview notes she had already been supplied under the Freedom of Information request.

The Comparator is at the very least 30 years younger than the Complainant and is no way experienced in comparison. The Complainant’s experience runs into decades and the Comparator’s is at best two years part time teaching at the time of her appointment.

Given the extent of the Complainant’s teaching experience, publication output, research record and her collegiate and community contributions over three decades it is not plausible that the successful Comparator scored higher than her in these competencies which were the most heavily weighted.

The Complainant has extensive experience over two decades in research and  teaching history of the period – Ireland since 1750 which far outweighs that of the successful Comparator.

We believe that the above set of facts are of such significance that they are sufficient to establish a prima facia case of discriminatory treatment and that the burden of proof must now shift to the Employer for rebuttal.

It is the Complainant’s claim that in light of the foregoing facts the Respondent:

Discriminated against the Worker in circumstances amounting to discrimination on grounds of  age in terms of section 6(2)(f)  of the Employment Equality Acts, and contrary to section 8(1)(d) of the Employment Equality Acts in relation to her application for the position of Part-Time Lecturer in History (Ireland since 1750), School of History and Philosophy, Contract Type A, Part Time 0.4FTE, Specific Purpose Contract (a 3.5 year post).

The Complainant respectfully requests the Adjudication Officer to:-

a)             Declare that the case is well founded.

b)             Award the Complainant compensation in accordance with the legislation as they may deem fit.

The Respondent has more than 19,000 students from both Ireland and International locations and employs approximately 3,000 staff. The University is divided into five colleges across its campus and recognizes trade unions SIPTU and IFUT for collective bargaining, negotiation and representation purposes.

The Complainant commenced employment at the Respondent in 2003 within the School of Humanities as a Part-Time Teaching Assistant (now Teaching Support Staff (TSS)). 2.2 The Complainant held various contract positions until receiving a Contract of Indefinite Duration (CID) in 2020, which was revised and increased in 2021 to include additional responsibilities. More recently the Complainant took up an additional role of Research Assistant - History and Philosophy.

 Background to the claim. In 2024, the Respondent created a temporary 0.4 FTE Specific Purpose position titled ‘Lecturer in History (Ireland since 1750)’ to provide backfill teaching cover for an employee who had been appointed to the role of Vice-Dean of Equality, Diversity, and Inclusion. The essential requirements for the role included a PhD in History, experience convening and delivering undergraduate modules, research expertise in the relevant era, and a publication record commensurate with career stage. Desirable criteria included relevant administrative experience and supervision of undergraduate or postgraduate projects.

A four-person Board of Assessors was appointed, comprising senior academics including the Deputy Dean of the College of Arts, Social Sciences and Celtic Studies, the Head of History, the Deputy Head of the School of History and Philosophy, and a Professor from the School of Political Science and Sociology. The vacancy attracted significant interest, with seventeen applications received. Following a meeting to assess candidates against the essential and desirable criteria, the Board made the decision to shortlist six candidates for interview. The decision to interview a higher-than-normal number of candidates reflected the exceptionally high quality of the applicant pool and the current state of the academic history profession in Ireland, which features a surfeit of highly qualified candidates amassing notable teaching and research experience through short-term positions.

The interviews were conducted on the 6th of June 2024 and were structured to ensure fairness and consistency. The assessment was divided into two parts: a ten-minute presentation on a pre-circulated topic (proposing a final year seminar module) followed by a five-minute Q&A, and a thirty-minute formal interview. To maintain strict consistency, the board members posed similar questions to each of the six candidates, covering teaching and learning, research impact, contribution, and time management.  The scoring weighting was agreed upon by the Board members in advance of the interviews and heavily reflected the teaching nature of the role, with 40 out of 100 marks allocated to "Excellence in Teaching" and 15 marks allocated to "Public Presentation & Performance at Interview".

Candidates were assessed based on merit, and at no stage was age considered in the ranking process. The Board attest that they observed all the rules and regulations of the recruitment process and strongly refutes any suggestion that age was a factor in their decision-making. Following the conclusion of the interviews, the Board discussed the performance of each candidate and agreed upon scores and qualitative feedback. The Board noted that the overall standard was exceptionally high, resulting in consistently high scores across the strong field of candidates.

 The Respondent will adduce direct oral evidence at the hearing from Dr. Kevin O'Sullivan, Deputy Head of School and member of the Interview Board. Dr. O'Sullivan will attest that the candidate ranked first was appointed because they scored highest across all objectively assessed categories and demonstrated exceptional competency on the day. Dr. O'Sullivan will outline to the Adjudicator the specific, objective grounds upon which the first-ranked candidate excelled in their presentation, diverse teaching experience, and research trajectory.

On the 20th of June 2024, the Complainant was informed that she ranked sixth in this highly competitive process, achieving a total score of 76/100, and was provided with the Board's detailed feedback regarding her performance. The Board of Assessors provided the following feedback regarding the Complainant’s interview.  "Dr Uí Chionna was successful in her application and was ranked sixth. She has many years of teaching experience. The topic for her proposed module was very appropriate and would likely be attractive to students in the discipline. The description would have benefited from a clearer account of the weekly structure 4 of the module. The proposal for additional modules could have been more well developed. She has a good research profile with a good record of publication outputs. She articulated clear plans for interesting future research projects. Dr Uí Chionna has recently been shortlisted for a prestigious biography prize. The Board commends her strong record of public outreach and community engagement. There was scope for improvement in the structure and timing of the presentation. The Board believe Dr Uí Chionna could perform the duties of the post to a very good standard. “

Grievance and Escalation to the WRC. The Complainant was not satisfied with the marks awarded and initiated a Stage 1 grievance hearing with the Head of School. Their grievance was based on the claim that the scores did not accurately reflect her professional achievements and performance across the evaluated categories. The grievance hearing took place on 13th September 2024 chaired by Alison Forrestal, Head of School of History and Philosophy with Ann Kyne HR Business Partner in attendance. The Complainant was accompanied by her union representative Dr Chris Doyle. The Board recommended that the Complainant seek further feedback from the Chair of the Board, Prof. Ann Marie Groarke. Human Resources offered to facilitate this meeting upon request. This meeting took place on 3rd October and Professor Groarke was accompanied by Ann Kyne HR Business Partner, the Complainant was accompanied by her union representative and colleague Dr Chris Doyle. Detailed feedback was presented by Prof. Groarke on the day and aspects of the interview and presentation were discussed. Following the internal grievance process the Complainant referred the complaint to the WRC on 2 December 2024. Respondent’s Arguments Prima Facie Case of Discrimination & the Burden of Proof It is the well-established practice of the Equality Tribunal (Workplace Relations Commission) and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that they were treated less favorably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201, where the Court stated: “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”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be 6 inferred on the balance of probabilities that an act of discrimination has occurred.”

Direct discrimination consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of age grounds for such treatment. Both elements must be satisfied for a claim of discrimination on the ground of age to succeed. It is respectfully submitted by the Respondent that the Complainant has provided no evidence of less favourable treatment. The Complainant has not identified any other employee of a different age than whom she was treated less favourably. Thus, the Complainant has provided no evidence of discrimination. The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. It is the Respondent’s position that the Complainant has singularly failed to establish a prima facie case of discrimination and as such the burden does not shift to the Respondent in this instance.

 In Melbury Developments v Arturs Valpetters EDA/0917 , the Labour Court, while examining the circumstances in which the probative burden of proof operates stated that a Complainant: “…must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case 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.” It added that “…the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. ”Notwithstanding that the particular circumstances of each case are different; the Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an  Adjudicating Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

 Relevant Legislation. Section 6 (1) of the Employment Equality Acts 1998 to 2015 states: “(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, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, Section 6 (2) provides that as between any two persons, the discriminatory grounds are “(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)”. Direct discrimination” is defined as occurring, where one person is treated less favourably then another is, has been or would be treated and that person is of a different age than another person. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of age grounds for that treatment. Both elements must be satisfied for a claim of age discrimination to succeed.

Council Directive 2000/78/EC established a general framework for equal treatment in employment and occupation. The Directive recognises that differences in treatment in connection with age maybe justified by member states under certain circumstances. Accordingly, Article 6(1) of the Directive provides that discriminatory treatment directly based on age is permissible subject to objective and reasonable justification and where the means of achieving these aims are appropriate and necessary.

 Section 37 (2) of the Employment Equality Acts 1998 – 2016, states “(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out— (a) the characteristic constitutes a genuine and determining occupational requirement, and (b) the objective is legitimate, and the requirement proportionate.” Section 34(4) of the Act has been amended by the Employment Equality Act 2015 S.10 and in effect put on a statutory basis what had become the interpreted case law in practice and what was considered to be in line with the European Directive. This section is based on Article 6 of the Equal Treatment Framework Directive which allows Member States to provide that differences of treatment on grounds of age are not discriminatory if, under national law, they are objectively justified by a legitimate aim, which may include employment policy and labour market and vocational training objectives, provided that the means of achieving that aim are appropriate and necessary. Section 76 Employment Equality Act (Request for Information)

The Complainant attempts to draw an adverse inference from the Respondent’s refusal to provide the specific marks, ages, and qualifications of the other candidates via Freedom of Information (FOI) and Form EE.2 requests. The Respondent firmly rejects this assertion. The Interview Summary Report strictly mandates that all documentation and proceedings of the Assessment Board "must always be regarded as confidential". Furthermore, the Explanatory Note for the Employment Equality Acts Form EE.2 explicitly exempts the Respondent from providing "Confidential information," which is defined in the statute as "any information which relates to a particular individual, which can be identified as so relating, and to the disclosure of which that individual does not agree". The Complainant’s request fell outside the scope of “material information”. Section 76(2)(b) of the Act allows a Complainant to request information about the treatment of other persons, other than confidential information. Section 76 (3) explicitly defines confidential information as “any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree”  The Respondent is a Data Controller under the GDPR and disclosing the ages, gender and qualifications of other candidates to a third party (the Complainant) without a lawful basis would have constituted a data breach. The Respondent was statutorily bound to protect the privacy of the successful candidate and the other interviewees. Relying on statutory privacy protections cannot be construed as an act of discrimination or a lack of transparency. The Complainant was afforded full due process, receiving her own scores, qualitative feedback, and two separate grievance meetings to discuss her performance. The Respondent submits that the Complainant’s reliance on the Section 76 procedure was not a targeted inquiry grounded in a genuine or reasonable suspicion of age discrimination, but rather constituted a speculative trawl for information. It is notable that while the Complaint Form lodged with the Workplace Relations Commission alleges discrimination solely on the ground of age, the Complainant’s Section 76 request sought data regarding the gender of other candidates. This inconsistency is instructive. The inclusion of gender—a ground not subsequently relied upon—demonstrates that at the time the request was made, the Complainant possessed no facts of sufficient significance to form a belief that age was the deciding factor. Instead, the Complainant appears to have been engaged in a fishing expedition' seeking to construct a claim based on whatever statistical anomalies might appear in the requested data, rather than on any actual treatment they experienced.

The Respondent relies on Southern Health Board v. Mitchell, which requires a Complainant to establish primary facts from which discrimination may be inferred. A request for information that casts a net across multiple, unrelated protected grounds serves to highlight that such primary facts were, and remain, absent. The Respondent submits that a mere dissatisfaction with the outcome of a competition cannot be retrospectively converted into a discrimination claim through a speculative data request. Arguments based solely on age differential. The Complainant’s entire assertion of age discrimination rests on the premise that it is "not plausible" for a younger candidate with fewer years of experience to have outscored her. The Respondent submits that this constitutes the exact type of "mere speculation or assertions, unsupported by evidence" warned against in Melbury Developments v Arturs Valpetters.

The Respondent asserts that years of experience do not automatically equate to a superior interview performance. The final ranking of the candidates was determined by their performance on the day, specifically regarding how they answered questions on research and delivered their presentations. All six candidates interviewed were deemed appointable by the Board, meaning they all met the high standards required. The Complainant’s lower ranking was due to objective, documented shortcomings during her interview, which she has openly acknowledged. The Board's feedback explicitly noted that "There was scope for improvement in the structure and timing of the presentation" and that her "proposal for additional modules could have been more well developed". During the Stage 1 Grievance Meeting on the 13th of September 2024, the Complainant admitted that due to her poor time management, the Board Chair had to warn her she only had one minute left, forcing her to "wrap up in one minute". She further admitted that because of this, she was not asked about additional modules at all during the interview. it is entirely rational and non-discriminatory for an interview board to award higher marks to a candidate who presents their material within the allotted time and fully addresses all required criteria, such as the successful Comparator, whose approach to teaching greatly impressed the panel.  The Complainant is seeking to rely on the factual age differential between themselves and the first-ranked candidate as the primary basis for their claim. The Respondent submits that this constitutes a fundamental misunderstanding of the legal burden of proof. The mere existence of an age difference is a biological fact, not a legal wrong. To succeed, the Complainant must do more than identify that they are part of a protected category (older age bracket) and that they suffered a detriment (non appointment). They must establish a causal link between the two. The Respondent relies on the seminal Labour Court determination in Southern Health Board v. Mitchell [2001] E.L.R. 201. This decision established that a Complainant must prove the "primary facts" upon which they rely. The Court held: "Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."  This principle was reinforced in Melbury Developments Ltd v. Valpeters [2010] E.L.R. 64, where the Labour Court confirmed that a Complainant’s subjective feeling of injustice, or their personal belief that they were the better candidate, is insufficient to shift the burden of proof to the Respondent.  The Respondent refers the Adjudicator to the Labour Court determination in Jewel Star Designs Ltd v Sheppard (EDA1912). In that instance, the Labour Court overturned a finding of the WRC, holding that the mere fact that a Complainant is older than other candidates (or their replacement) does not, in itself, constitute a prima facie case of discrimination. The Complainant asks the Adjudicator to make a leap of logic: that because the Complainant was the oldest candidate, the decision to rank them sixth must have been tainted by ageism. The Respondent categorically rejects this. The candidate ranked first was appointed because they scored highest across the objectively assessed categories. As the University is mindful of its obligations regarding the privacy and confidentiality of its employees, specific identifying details regarding the successful candidate’s application and curriculum vitae are not set out in this written submission. However, the Respondent will adduce direct oral evidence at the hearing from Dr. Kevin O'Sullivan demonstrating exactly how the first-ranked candidate outperformed the Complainant across the Competency Framework on the day of the interview, particularly regarding their presentation skills, approach to teaching, and research profile.

If the Complainant’s logic were accepted, it would render it legally impossible for a University to appoint a younger candidate over an older candidate, regardless of merit. This would impact the Respondent’s right to appoint the most suitable person for the role, irrespective of age. The Respondent submits that the Complainant has failed to bridge the "causation gap." As per Mitchell, they have failed to establish facts of sufficient significance to raise a presumption of discrimination. Consequently, the burden of proof does not shift to the Respondent and the claim must fail. Dr Anne Cleary and University of Dublin (DEC E2018-009) The Complainant relies heavily on the Equality Tribunal decision to suggest that an age disparity combined with a difference in years of experience automatically creates a prima facie case of discrimination. The Respondent submits that the facts of the instant case are fundamentally distinguishable from Cleary.  In Cleary, the tribunal found evidence of discrimination because the younger successful Comparator lacked basic objective requirements for the role—having secured only nominal research funding, having no postdocs, significantly fewer publications, and no teaching awards. In stark contrast, the successful candidate in the instant case was highly qualified and fully met the essential requirements of the post. As confirmed by the Interview Board Chair, Professor AnnMarie Groarke, all six shortlisted candidates— including the Complainant and the successful Comparator—were rigorously assessed and explicitly "deemed appointable by the interview board".

The first-ranked candidate was not appointed despite a lack of core qualifications, but rather because her specific performance on the day of the interview, particularly her "approach to teaching", was deemed superior. The Equality Acts do not mandate that an interview board must appoint the oldest candidate with the longest curriculum vitae, provided the successful candidate is suitably qualified and performs better against the objective Competency Framework during the assessment. The Prior Teaching Argument.  The Complainant relies heavily on the fact that she had previously provided temporary short-term cover for the predecessor in the role to argue she should have automatically secured the role. The University is obligated to run a competitive process. Furthermore, the role being covered by the Complainant was not the entirety of the role that was advertised. The advertised role had administrative and research responsibilities as well as teaching responsibilities.

Seventeen applications were received, and the board deliberately called a higher than typical number of candidates (six) to interview due to the exceptionally high quality of the applicants. The Complainant’s prior cover was sufficient to secure her shortlisting, but the ultimate decision was based on who performed best on the day of the interview against the pre-agreed criteria. The Respondent firmly rejects the premise that providing short-term teaching cover circumvents the requirement to compete and excel in a formal, competency-based interview. The ability to teach a specific seminar is only one facet of the "Excellence in Teaching" and "Public Presentation & Performance" competencies. The Interview Board must evaluate how a candidate structures their presentation, manages their time, and articulates their vision for the module. By her own admission, the Complainant failed to manage her time effectively during the presentation, had to "wrap up in one minute," and subsequently failed to present or be asked about her proposals for additional modules. Familiarity with the syllabus does not excuse poor presentation structure or timing during a competitive assessment. The successful candidate was appointed because she delivered a superior interview and presentation, completely independent of either candidate's age.

Conclusion;The burden of proof rests firmly with the Complainant to show that she was discriminated against on the grounds of age. The Respondent submits that the Complainant has failed to establish a prima facie case, relying entirely on the mere speculation that her years of experience should automatically equate to a higher interview score, which falls short of the statutory requirement for factual evidence.  Should the Complainant shift this burden, it is the position of the Respondent that the claimant was evaluated comprehensively, objectively, and fairly against the established Competency Framework for the Lecturer Contract Type A role. Her final ranking of sixth was based entirely on her comparative performance during the interview on the 6th of June 2024—specifically her documented struggles with presentation timing and structure, and the underdevelopment of her module proposals—and had absolutely nothing to do with her age.

 The first-ranked candidate was appointed purely on merit. By her own admission during the Stage 1 Grievance Meeting, the Complainant suffered from poor time management during her presentation, had to "wrap up in one minute," and subsequently was not asked about her additional modules at all. It is entirely reasonable and non discriminatory for an interview board to award a higher score to a candidate who performs better on the day and adheres to the structural parameters of the assessment. Further case law which considers the burden of establishing a prima facie case of discrimination by the Complainant before the Respondent has a case to answer is the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, where it is stated that the language used within section 85A “indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.” Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v. The Equality Tribunal and County Louth VEC [2016] IESC 40 wherein McKechnie J stated: - “It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it.” The Supreme Court further stated that the Court “does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Court. Rather, it determines what lawfully has been referred to it with a view to providing redress to the Appellant applicant for any discrimination as found. The Court cannot as such freelance its inquiry”.  It is on this basis the Respondent respectfully submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, there is no case to answer by the Respondent, and accordingly, the matter should be dismissed in its entirety.

Discrimination for the purposes of this Act

6. (1)

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2)

As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—…..

(f)

that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(

(3)

Where—

(a)

a person has attained the age of 65 years, or

(b)

a person has not attained the age of 18 years,

then, subject to section 12(3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.

Section 8.—(1)(d) In relation to—

(d) Promotion or re-grading

An employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 8(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) The employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

The Burden of Proof

Section 6 (1) of the Act clearly sets out that for discrimination under this Act to occur it must be on one of the nine grounds set out in subsection (2). This claim relates to the age ground.

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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 Labour Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“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 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 is no infringement of the principle of equal treatment.”

It follows that a Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination.

In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

It is for the Complainant in the first instance as set out by the Labour Court in Mitchell v Southern Health Board [2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which she relies.

The Evidence

The Complainant gave evidence to the Hearing. She advised she commenced employment in 2004.  She advised her role was part time and the role was divided between her and a Phd student. She confirmed she was interviewed for the promotional role by 2 Males and 2 Females. She stated she thought the interview went well and questioned the notice of timing given to her at the interview and that the questions were not standardised for all candidates. The Complainant set out her education and background. The Complainant stated she received no formal feedback re her grievance. The Complainant was cross examined and asked did she agree that more experience did not lead to a better interview and the Complainant agreed. It was put to the Complainant that the successful candidate performed better on the areas for evaluation and at interview and the Complainant replied she was unaware of the other Candidates performance .It was put to the Complainant that she did not manage the interview time slots well and went outside them and the Complainant stated there were issues with the 1 minute notice to wrap up. The Complainant was asked had she any other evidence to support the claim of age discrimination and she replied that she did not accept age was not a factor in the decision.

Following the Complainants evidence, the Complainants Representative went through a number of areas which included the issue of the CID to the Complainant, there was no proof of similar questions being asked, that interview time management was not mentioned to the Complainant at the interview, the appropriateness of the weightings allocated, the Complainants plans for future research projects, the difference in experience of the Complainant and the Comparator and the perceived less favourable treatment in the marks awarded to the Complainant. The Representative advised there was very little information shared with the Complainant after the process, that it was not plausible for a younger candidate with less experience, less research and less awards to be more competent than the Complainant. She asked was the Complainant the oldest candidate and that it was not right that so much emphasis was put on the interview.

Dr. Kevin O’Sullivan, Deputy Head of History and Philosophy School, gave evidence to the Hearing. He advised his role was to co-ordinate the selection process and he set up a gender balanced interview panel, which included him. He advised he had completed an interview bias and interview skills programme (details were supplied to the Adjudicator as requested post the Hearing).. He advised there were 17 applicants and they short listed to 6 after a two hour shortlisting meeting. After the shortlisting the Panel signed off on the candidates for interview. He advised the weightings were derived for the factors to be evaluated for the role and the scoring all round was high and went between 76 and 86 points.(Individual names and scores of the other 4 successful applicants were not discussed at the Hearing). He advised the questions were the same for all candidates and were conducted by the Interviewers in the same way for each interview. (The interview notes provided to the Adjudicator set out the areas for each Panel member to pursue at interview). He advised the Complainant went over time in her interview and did not show good time management in the interview.  He advised the successful candidate showed very strong performance in three areas: presentation skills, module drafting and timing. He advised she showed strong teaching attributes, good teaching processes, good student feedback and was involved in writing a book, had two published peer reviews and had strong public outreach in her prior role. He advised the successful candidate could drop immediately into the role which involved 60% Teaching, 20% Research and 20% Admin.

Dr. O Sullivan was cross examined by the Complainant Representative and asked did the panel ask the same questions of all applicants and he confirmed they were. He was asked when the scores were arrived at and he advised at the end of the process. He was asked was the Complainants 7 years covering that module in GMIT taken into account and he replied it was. The Complainant Representative stated the Complainant had several years of teaching experience and did not get through this in her interview due to time pressures.

Findings

Claims regarding discrimination concerning promotions are always difficult to consider as there is huge precedent for the WRC not to interfere in a promotion decision of an Employer, unless there is blatant discrimination. It is essential a Complainant can establish a prima facie case to support their case. It is very important to note that the Complainant and 5 other candidates were deemed capable of performing the role. It was then a matter of evaluations to make very fine distinctions between all the capable candidates as to who the Interview Panel deemed most suitable to perform the role. This is evidenced by the small differences in the candidates scores.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a 

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant alleged that she was discriminated against due to age. Six candidates were deemed successful in their applications for the post and the Complainant was ranked 6th of the successful candidates and the named Comparator, a female, was ranked first. I was advised there was approximately 25/30 years age difference between the Complainant and the named Comparator. Three Female candidates and three Male Candidates were successful in their applications. The Panel of Interviewers consisted of a gender balance, two Female and two Male Assessors. The ages of the Interview Panel was not provided. The age details of the other four successful candidates was not supplied nor was an estimate of their ages. This would be consistent with GDPR and was not essential to my considerations.

It is noted by the Adjudicator that, Dr. Róisín Healy, Head of the History Department, covered the area of Excellence in Teaching / Strategy and Vision  and  Dr. Kevin O Sullivan, Deputy Dean of History and Philosophy, covered the area of Excellence in Associated Research. Therefore, it can be extrapolated that there was no question of lack of knowledge of the role requirements or capability to assess the Candidates experience and suitability for the post within the Interview Panel (and to be clear, nor was this maintained by the Complainant).

The Interview notes for all six candidates was provided to the Adjudicator on a confidential basis post the Hearing at his request and for reasons of confidentially these could not be shared with the Complainant Representative or Complainant. The Adjudicator has reviewed these individual interview notes and nothing is apparent in the notes to lead the Adjudicator to determine that the Interview Panel displayed any age bias to the 5 Candidates who were placed ahead of the Complainant and in particular the named Comparator. The Adjudicator is not in a position, for confidentiality reasons, to document from these notes any particular details of comparison of the other four successful candidates or the named Comparator in this Decision as they were not party to the Hearing process. However, it is reasonable to say that the scoring was very tight, and the successful candidate outscored the Complainant on 3 of the 6 areas analysed for the role.

While the Complainant displayed the education and experience for the post so did all the other successful Candidates. The Complainant has a very notable career and both public and community service. The Complainant is, in effect, asking the Adjudicator to determine that the four Interviewers had an age bias against the Complainant in favour of the successful candidate. I find that at the time of the selection and interview processes, the Interview Panel had no knowledge of the actual age of the candidates and no evidence was provided by the Complainant to demonstrate it was a consideration for selection or appointment to positions. Based on all the above no age bias could be construed or has been established by the Complainant . While the Complainant set out her reasons why she considered herself to be a more suitable candidate than the successful candidate, none of the reasons could be solely linked to age discrimination. Interviews by their nature involve subjective judgements by Interviewers on a wide range of issues. This Adjudicator has extensive interview experience and the amount of variables that are taken into account by Interviewers are wide ranging and often involve subtle behaviours, varying verbal or presentation skills, focused questions to elicit answers for comparison purposes of the Candidates experience, how people interact, etc etc. Many of these multiple behavioural evaluations are clear to an Interviewer in assisting them form their opinions of a candidate but are not clear to the candidate being interviewed and often not always documented by the Interviewers but are formed based on experience. To be absolutely clear, I make this observation as a general point and not in relation to the process in question or the Complainant.

What the Complainant failed to address was that the Interview Panel were biased, in some shape or form, in favour of all five Candidates who were placed ahead of the Complainant in the competition. This is a stretch too far for the Adjudicator to reason without any evidence to support that the Interview Panel showed a bias towards the other five candidates and this is also a major contributing factor in my assessment of this complaint.  

While the Complainant had more experience due to her age than the successful candidate this is not a guarantee in justifying an age discrimination case. The fact the Complainant did some of the work of the role on an interim basis supports her case but is not definitive in supporting she should be appointed to the role. Quite rightly the job was publicly advertised and received a large interest. From the interview notes it is clear that each Interviewer had a defined area to question for all candidates. I was given no evidence to suggest this was not followed.

The Adjudicator cannot find any flaws in the areas and method of the selection process or the make up of the Interview panel that would justify a finding of an unfair selection process. The Respondent while maintaining confidentially of the applicants details should have done a much better job in responding to the Complainants EE requests, even if just to formally deny them due to GDPR. However, while not ideal, this lapse has no fundamental bearing on the selection outcome.

Given the age difference and experience between the Complainant and the successful candidate it is reasonable to assume that age discrimination falls within the possible range of assumptions. However, I am satisfied a) from my analysis of the selection process b) the evidence of Dr. O Sullivan c) the composition and experience of the Interview Panel d) that the Complainant was successful in her application, e) that the Complainant was determined to be the sixth most successful candidate (not the second) and f) the review of the interview notes for all candidates,  that while within the range of possible assumptions,  the case for age discrimination has not been proven and the facts of the case show that the process used by the interview Panel had no age bias and the successful candidate was appointed after a fair and non discriminatory process.

I find that the Complainant has failed to establish a case of discrimination on the age ground and the complaint is not well founded.

I find that the Complainant was not discriminated against on the age ground and her complaint is not well founded.

Discrimination