Complainant

Respondent

Parties

Richard  Beasley

Department Of Public Expenditure, Infrastructure, Public Service Reform And Digitalisation

Representatives

Self

Claire Cummins, BL, instructed by  Chief State Solicitor’s Office

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-00073329-001

10/07/2025

The Complainant attended an interview on 08 April 2025 for the post of Assistant Principal Officer (Higher).  He was unsuccessful in his application.  Feedback provided to him described his examples as “dated”.  The Complainant submits that his examples were drawn from a career of more than fifty years and were relevant to the competencies identified. He believes that a prima facie case arises as he is an older candidate and the characterisation of his examples as “dated” undervalues his extensive experience. The Complainant submits that discrimination occurred on the age ground.

The Respondent submits that the eligibility for the post was not age-based.  Candidates were advised to give “the most recent examples” from their experience which would show their ability to demonstrate the relevant competencies. The word “dated” was used in the context of a competency process that expressly asked candidates to provide their most recent examples.  This word is not a proxy for age.  The Respondent rejects the Complainant’s assertion, and submits that candidates were evaluated on the basis of the answers provided to the interview questions which were based on the identified competencies.

The Complainant gave evidence on oath.  He outlined that his complaint is that he applied for a post with the Department of Public Expenditure, Public Service Reform and Digitalisation in order to be placed on a panel for the role of Assistant Principal Officer (Higher).  He completed the application form and was called for interview on 08 April 2025.  He stated that approximately one week later, he was informed that he was unsuccessful. 

The Complainant outlined that he attended an online Feedback Session on 29 May 2025 with Mr Cormac Grundy who was a member of the interview panel.  The Complainant submitted that during this session Mr Grundy used the word “dated” seven times.  The word was used in relation to the examples he provided in response to questions from the panel members.

The Complainant gave evidence that his examples were taken from his current role as well as other positions throughout his career, which he stated was over 50 years.  It is the Complainant’s position that in order to consider the relevance of a candidate’s competency responses these must be considered in the light of that candidate’s overall experience.  In that context the Complainant submitted that a candidate with over 50 years’ experience could provide examples from 10 to 20 years previously and those answers could remain relevant when the answers are aligned with the requirements of the particular role.  By way of contrast a candidate with only 5 years’ experience would have their relevancy period looked at in that timeframe.

Cross Examination – the Complainant

The Complainant was cross-examined by Claire Cummins, BL, on behalf of the Respondent.  The Complainant confirmed details of his career.  He also confirmed that he was 69 years of age when he applied for the role.  He confirmed that he retired in February 2026.  The Complainant agreed that when he applied for the role he was asked to give examples of his most recent experience and these would be the basis for interview questions.  The Complainant also agreed that the interview was structured and that the same skills were explored with all candidates.  The Complainant also agreed that as part of the process a candidate’s age would not be known by the interview panel.  The Complainant confirmed that he was unable to attend any of the interview preparation sessions as he was on annual leave. 

It was put to the Complainant that in three of the four competencies he gave examples which were from roles held before his current role and he agreed.  It was then put to the Complainant that the Respondent’s case was that he neglected to give recent examples in his application form.  The Complainant disagreed and stated that as his career spans 52 years the notion of recent depends on the length of time one is working. It was put to the Complainant that he was relying on examples from the earlier part of his career and he disagreed.

The Complainant accepted that he did not have a comparator and also that he did not have a hypothetical comparator. 

The Complainant confirmed that he disagreed with the Respondent’s position that his non-progression was as a result of the interview scores and not his age.

The Complainant also agreed that he had a Teams Feedback Session with Cormac Grundy on 29 May 2025.  He agreed that he was relying on his contemporaneous note of that session.  The Complainant agreed that this was not a full transcript but it was “more than a recollection as it was happening in real time”.  The Complainant confirmed that it was his belief that the word “dated” resulted in him getting lower scores at interview.  He agreed that the feedback was helpful.

The Complainant clarified that his complaint was that he was directly discriminated against on the age ground. It was put to the Complainant that he failed to identify any younger candidate who was treated differently and he agreed that he did not have any such candidate.  The Complainant was asked to clarify his understanding of the word “recent”.  He stated that in terms of the number of years recent for him this could be in the last 10 to 20 years in the overall context of a 52-year career.

Closing submission – the Complainant:

In a closing submission the Complainant outlined that the basis of his complaint was the use of the word “dated” from a panel member during the Feedback Session.  The Complainant noted that the Respondent viewed the use of recent examples as referring to recent years, whereas he viewed the term in the context of a person’s overall career. The application form for the post did not clearly clarify what the words “most recent” meant.  It is the Complainant’s position that the word recent must be looked at in terms of the long career of an individual.

The Complainant contends that the Respondent’s submission states that his examples were from 20 to 30 years previous but there was only one such example provided in evidence by the Respondent’s witness. The Complainant submits that his interview scores were marked down as a result of this view and if recency was looked at in a proper context his outcome would be different.

The Respondent strongly rejects the assertion that it discriminated against the Complainant on any basis, including on the grounds of age.  It is the Respondent’s position that as the Complainant has not discharged the burden of proof placed on him by Section 85A of the 1998 Act his claim should fail.

The factual background is that the Respondent held an internal competition for the post of Assistant Principal Officer (Higher). This competition was open to all eligible serving officers wishing to be considered for appointment to this post.  There was a competition booklet produced, and this confirmed that the Respondent was supportive of a “balanced, inclusive and diverse workforce at all levels” including AP Higher.  Eligibility was not age-based. There were three stages to this competition.  (1) Application and shortlisting; (2) first-round competency-based interviews and (3) second-round competency-based interviews. There were four competencies identified for the role and these were outlined in the competition booklet.  This booklet advised candidates to give “the most recent examples” from their own experience that showed their ability in the identified competencies. A rating scale was in place and a pass mark of 60 was required in order to progress to the second-round interviews.

The Respondent provided interview training on three dates to assist potential candidates.  The Complainant did not attend.

There were four interview panels set up.  The Complainant attended for interview on 08 April 2025 but did not progress beyond this stage as he failed to meet the required mark in two of the four competency areas. His non-progression was as a result of the scoring structure which applied to all candidates.

There was a total of 82 applicants for the role, 51 of which were shortlisted for the first-round interviews.  Arising from these 24 candidates progressed to the second-round of interviews.  Two of the candidates who progressed to the second-round interviews were ages 61 and 66.  At least 31 of the candidates not called for a first interview were younger than the Complainant and at least 23 candidates who were younger than the Complainant were not invited to a second-round interview.

The Complainant was provided with feedback on 29 May 2025 by Cormac Grundy who was a member of the interview panel.  The Complainant alleges that the word “dated” was used seven times during this session and he was told that his examples were insufficiently current.  These feedback sessions were not formal sessions but were offered in order to provide feedback to applicants and to assist them in any future applications and career development.

Examination in Chief:  Deirdre Rudden:

Ms Rudden gave evidence on oath on behalf of the Respondent.  She outlined that she is a Principal Officer and is in a Head of HR role since March/April 2025.  Ms Rudden confirmed that she is responsible for all internal recruitment, and her team designed the candidate information booklet and agreed the competition schedule with the Secretary General.  Ms Rudden described the role as a managerial role at senior level within the department and it is pivotal in terms of the unit they work in.  This role would also have a strong policy focus.  Ms Rudden gave evidence in relation to the recruitment stages.  For this competition there were 82 applicants and 51 were shortlisted for the first-round of interviews.  There were four interview panels with three people on each panel. The outcome of the first-round was that 24 candidates progressed to second-round interviews.  The outcome was that the 14 vacancies were filled.

Ms Rudden confirmed that all interview panel members were trained in relation to the do’s and don’ts as well as topics such as unconscious bias. There was also a briefing document which set out the ground rules including the confidentiality of the process.

The candidate booklet contained a specific section on equal opportunities and inclusion.  The booklet also provided details of the privacy notice and outlined that restricted data would not be shared with the interview panels.

Ms Rudden outlined that the questions asked by the panel at first-round interviews mirrored the application form and also what was relevant for the Department.   There was a rating scale in place with a pass mark of 60.

Ms Rudden confirmed the dates training was made available to potential candidates.  She confirmed that the Complainant did not attend.  Ms Rudden was asked to clarify what “recent examples” referred to and she confirmed that this meant examples from the last year or two of a candidate’s career.

Ms Rudden agreed that there was a mixture of ages of candidates who were not shortlisted for first-round interviews.

Cross Examination – Ms Rudden:

Ms Rudden was cross examined by the Complainant.  She was asked how many of the 51 candidates requested feedback.  She did not have that figure.  Ms Rudden confirmed that the feedback process was that a member of the interview panel would provide feedback to any candidate who requested this. Feedback is only given if requested. 

Ms Rudden was asked if the interview panels received any training in relation to the Commission for Public Service Appointments (CPSA) Code of Practice. She confirmed that the training provided covered all the basics and was given by the same person who provided training to prospective candidates. Ms Rudden did not know if panel members received any specific training in relation to feedback and the Code of Practice.

Examination in Chief – Ms Deirdre O’Neill:

Ms O’Neill gave evidence on oath on behalf of the Respondent.  She gave evidence in relation to her role as Principal Officer for the Single Pension Scheme.  She was the chair of the interview panel the Complainant attended.  Ms O’Neill confirmed that interview training was mandatory and she attended.  She also outlined that as interview panel chair she was responsible for ensuring that it was carried out in a fair manner and that all candidates were given the same opportunity.  She was also responsible for organising the questions the panel would ask.  The competencies were assigned to individual panel members and she would deal with any closing questions and clarifications.

Ms O’Neill confirmed that the Complainant attended for first-round interviews.  He was dealt with in the same manner as any other candidate.  His interview was later in the day and she opened the interview followed by Ms Travers and then Mr Grundy.  The interview lasted 30 minutes and the questions and time were the same for all candidates.   Ms O’Neill confirmed that the Complainant was assessed based on the questions as set out.  Ms O’Neill said that the interviews were “very procedural” so as to ensure all candidates were treated in the same way.  The panel were looking to see if the person had the experience that would be required for the role.  The panel agreed their notes at the end of each interview and scored candidates at that time and recorded these on the interview sheet.

Ms O’ Neill gave evidence that her panel conducted two days of interviews.  Five candidates requested feedback and this was provided.  Ms O’Neill could not recall if feedback was included in the interview training but she was clear that the overarching approach from HR was to be as constructive as possible.

Ms O’Neill stated that she felt that the Complainant had the same opportunity as any of the other candidates.  He did not demonstrate competency in two of the areas, stakeholder engagement and policy development, and these were critical areas for the Department.

Cross Examination – Ms O’Neill:

Ms O’Neill was cross examined by the Complainant. She confirmed that of the five candidates who requested this also included the Complainant.  She was asked how this feedback was provided and she confirmed that any candidate she gave feedback to was in person.  Ms O’Neill was asked what information was recorded in relation to feedback sessions.  She stated that they used the candidate’s scoring sheet as the basis for the feedback and they would not take notes and she was not aware of any requirement to do so.  It was up to the candidates to take any notes they wished.

It was put to Ms O’Neill that it would have been useful to have notes taken at the feedback sessions.  She stated that the purpose of the feedback was to provide a candidate with information that would assist them in any future applications and also in terms of their career progression.

In response to questions from the Adjudication Officer Ms O’Neill confirmed that there was no mention of the word “dated” in the interview notes.  She confirmed that these notes were taken by a note-taker.

Ms O’Neill was asked by the Complainant if she could provide him with an example that was deemed “dated”.  She stated that she could clearly recall an example the Complainant gave on his involvement in the restructuring of a bank which was from some years previously. 

Ms O’Neill was asked if the panel members had any discussion in relation to “dated” examples. She stated that she had no recall of the word being used.  She was clear that there was no evidence that the competencies could be delivered and no current examples were referenced in the Complainant’s answers.

Examination in Chief - Mr Cormac Grundy:

Mr Cormac Grundy gave evidence on oath on behalf of the Respondent.   He confirmed that he is currently Head of Corporate Governance in the Department.  He also confirmed that he was a member of the interview panel which interviewed the Complainant.   He stated that he attended the interview training.  He was asked what this training covered and he outlined that it covered legal aspects, discrimination, bias and how to get the best out of candidates.  The STAR approach (Situation, Task, Action and Result) was used and the panel developed the same questions as were on the application form.  He could not recall if feedback was included in the training.

Mr Grundy outlined that Ms O’Neill chaired the panel and she opened the interviews and then passed on to other members of the panel.  Each panel member dealt with two competency areas.  At the end of the interview session the panel had a discussion, agreed the scores, filed the form and signed it.

Mr Grundy was asked about the Complainant’s Feedback Session.  He confirmed that he was the panel member who provided feedback to the Complainant on 29 May on the Teams platform. He provided feedback to three candidates, including the Complainant, and two of them were on Teams. Mr Grundy stated that the purpose of this feedback was to provide information on what was required to attain higher scores. Mr Grundy agreed that he used the word dated during this Feedback Session.  This was used in relation to the wider issue regarding the way evidence was presented at the interview.  Mr Grundy said that he didn’t give a lot of thought to the word but his understanding was that it was the opposite to current or recent.  Mr Grundy stated that the format of the session was to have a brief introduction followed by feedback on the four competency areas and then wrap up the session.  Mr Grundy stated that it was important to have current or recent examples.  He also confirmed that there was no reference to age or any discussion in relation to the age of the Complainant.

Cross Examination – Mr Grundy:

Mr Grundy was cross examined by the Complainant.  It was put to Mr Grundy that the Complainant’s contemporaneous notes recorded that he used the word “dated” on seven occasions during the Feedback Session.  Mr Grundy agreed it sounded like a lot of use when put in that manner.  However, he clarified that he gave an overview of the interview feedback to the Complainant during the course of a forty-minute conversation.

Mr Grundy was asked if he recalled saying that dated examples would lead to lower marks.  He confirmed that he would have said that but that it was a missed opportunity not to have given more recent examples.  Mr Grundy was asked if he prepared notes for the feedback meeting.  He stated that the panel had access to the interview notes and he prepared for the feedback using those.  He would have no reason to hold on to these.  They were only intended as a memory aid. He also confirmed that he gave feedback to other candidates.

Mr Grundy was asked if he had received any training in relation to the CPSA code of practice and he could not recall if he had.  Mr Grundy also confirmed that he recalled being challenged by the Complainant in relation to the use of the word “dated” during the feedback meeting.  Mr Grundy stated that he could not recall if that word was used in the panel discussions but the fact that the Complainant did not have current or recent examples was discussed.  Mr Grundy was asked if other candidates were criticised for using dated examples.  He confirmed that they probably were.  One candidate had just recently joined the Department and their examples were from previous roles.

Mr Grundy was asked if it was his understanding that recent examples referred to the number of years rather than a candidate’s overall career and he confirmed that was his understanding.

Closing Submission:

Ms Cummins made a closing submission on behalf of the Respondent. She submitted that interview training material was provided for this competition.  The competition was held in accordance with the provisions outlined in the Code of Practice.  The Complainant is relying on the word “dated”.  He has not established a prima facie case as required by Section 6 of the Act.  He has also failed to provide any comparator which is also a requirement under the Act.  This is a complaint of direct discrimination on the ground of age.  This is not sustainable if a comparator is not identified.  The evidence adduced by the Complainant must be of sufficient significance to raise a presumption of discrimination and there is no basis for such a finding.  Age discrimination cannot be inferred from interview scores or the use of the word “recent” in an interview Feedback Session.

The Respondent ensured that the same process was in place for all candidates.  The claim of direct discrimination cannot be made out as the Complainant was placed 49th out of 51 and that is the reason he did not progress to the second-round interviews.

Ms Cummins noted that the Respondent’s written submission referred to a number of authorities upon which the Respondent relied.  The burden of proof is well outlined in the case of the Southern Health Board v Mitchell [2001] ELR 201.  The case of Melbury Developments Limited v Arturs Valpeters, [2010] 21 E.L.R. 64, expanded on the requirements to establish the initial proof that discrimination had occurred. This requires credible evidence and the Complainant has not established any facts which could raise a presumption of discrimination.

In the case of O’Higgins v University College Dublin [2013] E.L.R. 146  the Labour Court set out the legal test in relation to whether an applicant has established a prima facie case of discrimination in a recruitment and interview process in these terms:

            “1.  It is for the Complainant to prove the primary facts upon which she relies in seeking to  raise an inference of discrimination.

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

3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.

4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers.  Its only role is to ensure that the selection process is not tainted by unlawful discrimination.

5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

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

8. The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

It is the Respondent’s submission that this case clearly clarifies that it is not for the WRC or Labour Court to substitute its own views in relation to the interview outcome.  Its only role is to check the processes for unlawful discrimination.

The Respondent also submits that cases such as Public Appointments Service v Lester, EDA2022,Conway v Department of Agriculture, Food and Marine, ADJ-00011134 and Sheridan v An Post, ADJ-00057476 address the matter of the burden of proof.  In that context what needs to be addressed in this case is – was the process tainted by age discrimination.

The Complainant has no comparator and he confirmed this in evidence.  He also has not identified any evidence to have a presumption of discrimination.  The Respondent has confirmed that its use of the word “dated” was the opposite of current or recent. 

CA-00073329-001: The Complainant lodged a complaint to the Workplace Relations Commission on 08 April 2025 alleging that he was directly discriminated against by the Respondent on the age ground contrary to the Employment Equality Acts.  This complaint arises from the Complainant’s attendance at an interview on 08 April 2025 for the post of Assistant Principal Officer (Higher).  It is the Complainant’s pleaded complaint that arising from the interview feedback received he was disproportionately disadvantaged because of his ago, due to the manner in which the selection criteria were framed.

The Respondent submits that the complaint is not well-founded and denies that any discrimination occurred. There was no age-related eligibility for this competition.  Candidates were assessed on four competency areas and were advised to give their most recent examples at the interview. The Complainant did not progress to the second-round interviews as he failed to meet the required pass mark in two of the competency areas. The Respondent submits that the evidence does not support a causal or inferential link between the age of the Complainant and adverse treatment.

The Law:

Section 6 of the Employment Equality Act, 1998, states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

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

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

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

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is brought pursuant to the Employment Equality Acts on the basis that the Complainant alleges he was subjected to discriminatory treatment on the age ground.

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 Section 85A above 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. Accordingly, the initial burden rested on the Complainant to establish primary facts from which discrimination on the age ground.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21 ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of his evidence given at the hearing.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Southern Health Board v Mitchell [2001] E.L.R. 201 noted:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can 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 be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

The relevant facts are  that the Complainant attended for interview on 08 April 2025 and he was given feedback by one of the interview panel members on 29 May 2025.  The use of the word “dated” during the Feedback Session led the Complainant to believe that this characterisation was linked to his low scores and did not take account of his “senior positions across a professional career spanning more than fifty years”.

The Need for a Comparator:

In order to prove less favourable treatment, the complainant must identify a comparator who is in a similar position but who does not possess the protected characteristic and who was treated more favourably.  It follows logically that without a comparator, the claim will fail and the choice of comparator is important to the success of any claim. Section 6 of the Employment Equality Acts requires that the comparator must be in a “comparable situation”.

The Complainant is alleging direct discrimination on the age ground.  The Complainant is required to establish that the direct discrimination must relate to the age ground and that this was the basis for the less favourable treatment.

Conclusion:

While the Complainant sought to establish his non-progression to the next round of interviews was due to his age, I am not satisfied that he established primary facts of sufficient weight to give rise to an inference of discrimination contrary to the principle of equal treatment.

CA-00073329-001: For the reasons outlined above, I find that the Complainant has not established a prima facie case that he was discriminated against on the age ground contrary to Section 8 of the Acts.

Interview.  Age discrimination.