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In the recently published Equality Tribunal decision A Prison Officer v The Prison Service, the complainant was awarded €80,000 for the effects of discrimination and victimisation under the Employment Equality Acts 1998 (as amended).The complainant alleged that he was discriminated against when the respondent failed to place him on a panel for the position of acting Assistant Chief Officer (ACO).

Background

The complainant was employed as a prison officer since 1998 and in June 2010 a staff notice was posted inviting applications from staff to form a panel to act up to ACO. The complainant applied by letter dated 1st July 2010 setting out his career and the selection was made by a selection panel without interview. The complainant gave evidence that he could not understand why his name was not on the panel as he was one of the more senior officers. He spoke to Deputy Governor A, who was chair of the selection panel, to find out why he had not placed on the panel and was told that he should have asked a couple of months ago for a move from the Medical Unit, that he did not know why the complainant expressed an interest in the post as he was working in the Medical Unit with the ‘dinosaurs’ and that he was no ‘spring chicken’ himself. Deputy Governor A also told the complainant that his health had been a factor in the selection panel decision not to put him on the panel. The complainant had previously had malignant melanoma cancer in 2009 and was absent on sick leave from May 2009 until September 2009. The complainant told Deputy Governor A that he had been cleared by his doctor to return to work and had acted up as an ACO since returning to work following his treatment when required. The complainant submitted a formal written appeal to the Governor on 5th of August 2010 and was informed by letter dated 7th of September 2010 that his appeal was heard on the 6th of September and was not successful. The panel of the successful applicants was published again on the 15th of September 2010 and there was one other successful applicant added to the panel. The complainant wrote to the Governor on the 22nd of September 2010 expressing concern that he was excluded from the panel and requested the names of the selection board, the names of the appeal board, the criteria and guidelines used in the selection process, the minutes of all the meetings in relation to the selection and appeals process and the reasons for the omission from the panel. The complainant did not receive a response to this letter and he wrote again on the 17th of November 2010 and received no reply. The complainant subsequently applied for the position of Assistant Industrial Supervisor (AIS).

The complainant submitted in relation to the acting ACO panel, that all of the successful applicants were younger than him. The complainant noted that the respondent failed to provide any documentation relating to the selection criteria or feedback to the complainant and failed to provide objective justification for the decision. The complainant also submitted that he was victimised following the referral to the Equality Tribunal and cited a number of examples in this regard.

The respondent denied that the complainant was discriminated against in the selection process and stated that age was never a criteria or part of the selection process for the Acting ACO position. The criteria considered were attendance record, punctuality, length of service, duty performance and suitability. There were no notes taken or scores used. The respondent also denied that the complainant was discriminated against on the age ground and also denied comments made referencing “dinosaurs” or “spring chicken” himself.

Conclusions of the Equality Officer

Discrimination in relation to the panel

The Equality Officer was satisfied that the complainant’s medical condition came within the definition of disability under the Equality Acts and expressed surprise if there were criteria which had to be applied by each member of the selection board that there was no written record of it. The Equality Officer refused to accept the respondent’s contention that in order to get selected to the panel, a candidate had to have worked or be working on the landings in the main prison at the time of the selection. She concluded in addition that the ages of the successful applicants reflected a tendency to appoint younger applicants.

The Equality Officer referred to the decision of O’Halloran v Galway City Partnership EDA077 where the Labour Court stated:

“Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”

In determining whether there was age discrimination in the filling of posts in the case of Portroe Stevedores and Nevins, Murphy, Flood Det. No. EDA051 the Labour Court also stated:

“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, 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. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).”

The Labour Court went on to say:

“Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration”.

The Equality Officer concluded that the selection process was not transparent and was satisfied that there was evidence of unfairness in the selection process and a “manifest irrationality” in the result. She concluded that the complainant was discriminated against on the age grounds.

Disability

The Equality Officer did not accept that the selection board did not know of the complainant’s illness as Chief Officer C who was on the selection board was in charge of the attendance and sick leave records. She was of the view that the complainant’s disability was a factor in the selection process and that the complainant had been discriminated against.

Victimisation

The Equality Officer concluded that the complainant had been victimised in relation to a number of incidents including escort duty at Blanchardstown Hospital, the imposition of the 3 hour forfeiture of leave where the complainant was absent on sick leave, the incident at the Mater Hospital, acting up to ACO since mediation in 2011, the failure of the respondent to place the complainant in the detail office, being reported for taking charge of the medical unit for a short period of time and the incident in the Separation Unit in 2013.

The Equality Officer applied the reasoning in the case of Monaghan County Council and Roy Mackarel Det. No. EDA1213 where the Labour Court stated:

It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).
Moreover, in a case such as the instant case, the Court must be alert to the possibility of subconscious or unrecognised influence by surrounding events operating on the mind of the decision maker (see Nevens, Murphy Flood v Portroe Stevedores [2005] 16 ELR 282).

Decision

(i) the respondent discriminated against the complainant on the age and disability grounds pursuant to section 6(2)(f) and (g) and in terms of section 8 of the Equality Acts in relation to selection for the panel;
(ii) the complainant was victimised pursuant to section 74 of the Employment Equality Acts.
(iii)the complainant was awarded €33,000 in relation to the discriminatory treatment and €47,000 in respect of victimisation.
(iv) the respondent was directed to ensure that a transparent fair selection process is adopted in all future competitions and to ensure that the selection panel is trained in the process and sets down in writing the criteria before embarking on the selection process, to adopt a marking scheme and the weighting given under each element and to ensure that notes are retained.

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