Case Number: DEC-E2012-037- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-037- Full Case Report
• Date: 01 March 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC - E2012-037

PARTIES

A Complainant

-V-

A Third Level Institution

File Reference: EE/2008/532
Date of Issue: 28th March 2012

Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(f) - age, Section 8(1) - access to employment , burden of proof - Section 85A , Time limits - section 77 prima facie case.

1. Dispute

1.1 This dispute concerns a claim by the above named complainant that he was discriminated against by the above named respondent on the age ground, in terms of Sections 6(1), 6(2)(f) of the Employment Equality Acts 1998-2008 and contrary to section 8 in that he alleges that he was discriminated against in relation to access to employment.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 19th November 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 17th August 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 1st
October 2009, 3rd December 2009, 20th January 2010, 5th May 2010, 6th September 2011, 7th November 2011, 11th November 2011 and 12th December 2011and from the respondent on the 12th November 2009, 6th September 2011 and 7th November 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 8th September 2011 and the final hearing was held on the 13th December 2011.

3. Summary of the Complainant's Case

3.1 In response to an advertisement on the 9th of November 2007, the complainant applied for the position of Assistant Lecturer in Construction Studies in the GMIT. He was interviewed by a three person interview board 0n 20th December 2007 but he was not successful. He submitted that he was discriminated against on the age ground in relation to that competition because the successful applicant was 31 and he was in 61. In April 2008 the position of Assistant Lecturer in Construction Technology Management was advertised by GMIT and the complainant made an application. He was interviewed by a five person interview board for the post on the 28th May 2008. He said that he was the most qualified of the applicant's interviewed for the position but he was not successful. The successful candidate was 31 and the same person who was appointed to the temporary post in 2007.

3.2 The complainant said that his presentation at the interview did not go well. He was required to do a presentation on the trends in Construction Technology and the day before the interview he was asked by Human Resources to email his presentation to them. He understood that the interview board would then be given a copy of his presentation and had read it prior to the interview. He said that he intended doing a slide presentation and following the request for a copy of it the day before the interview he decided to do a commentary and to give a copy of this to the interview board in the belief that they had already seen his presentation. He learned subsequent to the interview that the board had not got a copy of his presentation; HR had set it up on a laptop for overhead presentation by him at the interview but he did not know this. He said that the interview board did not inform him that they had not seen it. He believed that most of the interview went well but he was not happy about questions from two members of the interview board who had already interviewed him for the 2007 post. He said one member said to him that he had interviewed him before and queried why he had applied for the job given that he had failed to secure the previous job. He said that he believed that this comment was intended to embarrass and unsettle him and prejudice the minds of the other members of the interview board. He said that this interview member then suggested in an aggressive manner that he was trying to escape the construction industry and at the end of the interview he walked around the table and said to him "I am the person who has to deal with these bodies". Another member of the interview said to him that he had not been involved in education since 1975/1976 and that things had changed since he was involved in education and also that the student profile had changed and asked him "did he think he would be able to cope with the expectation of the present day students". The complainant said that he pointed out that he had sons going to 3rd level and that he was well aware of the students' expectations.

3.3 The complainant conceded during the hearing that he did not sell himself in his application and he failed to mention that he had experience as a lecturer in VEC evening classes and other lecturing experience he had because did not believe this information was relevant. The complainant said that the outcome of the interview was delayed until the 17th of September 2008 and no explanation was provided. He contacted the office and learned that the interview board had asked to interview the candidates who were not shortlisted and this delayed the outcome of the interview. Initially 5 candidates were interviewed and then 3 more were interviewed at a later date.

3.4 The complainant said that he believes he was the most qualified for the position. He said that one of the requirements for the position was membership of The Chartered Institute of Building (CIOB) or an equivalent body. He said that he is a member of CIOB and the successful applicant had only applied for membership of Royal Institute of Chartered Surveyors (RICS) at the date of the interview. He said that the successful appointee was much younger than him and he had no qualifications in construction. He accepts however that the successful applicant had a National Diploma in Engineering (Mining) and a BSc in Surveying for Resource Development.

4. Summary of the Respondent's case

4.1 The respondent denies that the complainant was discriminated against on the age ground in relation to access to promotion. They submitted that the interviews were carried out in a fair manner. The respondent said that the complainant applied for two posts with the GMIT in November 2007 and he was shortlisted for one. He was interviewed on the 20th of December 2007. He was not successful and was not placed on the panel. In April 2008 the post of Assistant Lecturer in Construction Technology/ Management (3 year fixed term contract) was advertised. The complainant applied for the post and was interviewed on the 28th April 2008 and he was unsuccessful. The respondent submits that the advertisements for the posts and the selection procedures were in accordance with the procedures laid down by the Department of Education and Science. Two members of the interview board gave evidence, Mr. A now retired Head of the Department Building and Civil Engineering, and Mr. B Head of School of Engineering. Mr A said he had long experience of interviewing in the GMIT and he stated that all members of the interview board were very professional in the way the interview was conducted. The respondent had regularly conducted training sessions for all members involved in interviewing and they had been briefed on equality matters. He said that the positions were in his area and he briefed the interview board on the requirements. They decided beforehand which area each interviewer covered in relation to nine criteria under which each candidate would be scored. The post in Construction Studies which was advertised in November 2007 was a short term contract which ran from January to June 2008. They needed a person who could get up to speed quickly on teaching the syllabus because the lecturing duties started in January. Mr. A sat on the interview board together with Mr. B Head of the School and the chair Ms. C a Senior Lecturer in Civil engineering. The board met before the interview and each member was allocated areas for questioning. There were 9 headings under which marks were awarded and a scoring guide was provided. Interview notes were taken by one member when the other was asking questions and Mr. A said Mr. B took notes for him and he took notes for Mr. B. The person selected scored 67 compared with the complainant score of 52.

4.2 The interview board for the post Assistant Lecturer Construction Technology/Management consisted of 5 members and the recruitment process was again in accordance with the procedures laid down by the Department of Education. The selection of the candidate was based on the performance at interview. There were 9 criteria under which the applicants were assessed. The successful applicant score was 69 and the complainants score was 44.5. Mr. A said that the interview was conducted in an impartial manner and the complainant's age was not a factor during the course of the interview or during the discussion afterwards. He also denied that either himself or Mr. B briefed the board against the complainant or made disparaging remarks about him at any time either...