ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033818
Parties:
| Complainant | Respondent |
Parties | Sergio Perez Zuriaga | Sap Ireland Limited |
| Complainant | Respondent |
Parties | Sergio Perez Zuriaga | SAP Ireland Limited |
Representatives | self | Michael Doyle A&L Goodbody Solicitors |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044696-001 | 18/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044696-002 | 18/06/2021 |
Date of Adjudication Hearing: 31/10/2023
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). Sworn evidence was given by the Complainant and Respondent Head of Recruitment.
Background:
The Complainant alleges discrimination on the grounds of Age and Race.
The factual matrix of this case relates to external recruitment vacancies and the Complainant has applied on several occasions and has been unsuccessful.
He argued that the chain of refusals constituted ongoing and continuing discrimination against him.
The Respondent stated several of the matters now referred to the Commission are time barred.
The Respondent stated that they would be prejudiced if the tribunal was to hear evidence on these matters as under GDPR, records relating to the Complainant were only retained (having regard to best practice) for no more than 2 years.
The following are detailed as incidents of ongoing and continuing discrimination specifically relating to job applications with the Respondent: 1. At a time in 2013 2. June 2014 3. September 2014 4. September 2016 5. March 2017 6. June 2020 7. Autumn 2020
The Complaint form was lodged with Commission on the 18th of June 2021.
There are two further applications made for positions with the Respondent on or about the 20th of February 2021 and on or about the 6th of April 2021.
The Respondent made a detailed submission on or about the 25th of October 2023.
As the Respondent was making a preliminary application to dismiss all claims other than those applications relating to 2021 the fact that their submission was made outside of the 15-day window to do so was considered by the Adjudicator and whether to hear the application or to adjourn. The Complainant sought an adjournment. The procedures provide that an Adjudicator has discretion to proceed or to postpone.
The Employment Equality Act 1998 as amended at section 77A. ( the Act) states:
77A.—(1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission] dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission] specifying the grounds of the appeal.
(b) On the appeal the Labour Court may affirm or quash the decision
The Act also requires that a complaint is lodged with the Commission within 6 months of the alleged discrimination occurring and based on reasonable cause that maybe extended to 12 months.
On the face of the papers and oral evidence there are several complaints being relied upon that are outside the 12-month timeframe. I have decided that the preliminary matter relating to whether the complaints are time barred should be determined.
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Preliminary Matter:
On balance there is a strong case to hear the preliminary matters as at face value most appear to be out of time and as pleaded are out of time. The Complainant views all the complaints as a continuum while the Respondent argues that the time between the events that occurred prior to 2021 commenced in 2013 and end about Autumn 2020. They are distinct and separate events in their view.
Continuing Discrimination:
The Labour Court in Hurley v County Cork VEC (EDA1124) said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. The case of the Department of Justice Equality and Law Reform v A Worker(EDA1422), which involved a complaint of alleged discrimination by a prospective employer and the Labour Court determined that the complainant had failed to prove a continuum of discrimination between historic alleged instances of discrimination outside of the six month referral period, and the alleged acts that the Court considered "in time", stating that the complainant failed to "establish a sufficient connection between the competitions, such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions".
At section 77 continuing discrimination is defined as:
(6A) For the purposes of this section—
(a) discrimination or victimisation occurs—
(i) if the act constituting it extends over a period, at the end of the period,
The Complainant had every opportunity to make a complaint based on age and/or race discrimination regarding the roles applied for commencing in 2013 and up to 2020. The Complainant is an engineer and applied for engineering roles. The fact that each role he applied for could be said to belong to a job family does not give rise to a case of continuing discrimination. The fact that he was unsuccessful on each occasion does not give rise to a case of continuing discrimination.
In Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 two cases are cited that elaborate on when a tribunal will allow a Complainant to sustain a case that separate incidents or events are actual a continuum:
16-100
In Waldron v North West Health Board,168 the Tribunal held that it had jurisdiction to deal with all of the discriminatory incidents alleged—despite the incidents commencing two and half years prior to the referral of the complaints—as the most recent act had occurred within six months from the date of the referral. The first incident occurred in October 1999; the complainant was placed under pressure to resign and her failure to do so resulted in her immediate supervisor informing her this would affect the way they worked together. The second incident occurred in October 1999 when the complainant was refused travel and subsistence expenses when she had to travel to an office which was not her permanent office base. The final incident occurred in December 2001 when the complainant was issued with a written warning. The complainant submitted her complaints to the Tribunal in June 2002. In accepting jurisdiction in respect of all of the incidents, the Equality Officer held:
“the three alleged incidences appear to be closely related given that they arise from issues between the same two employees over a continuous period and involve discrimination on the same grounds namely marital and family status. Having regard to Section 77(5) of the 1998 Act I am satisfied that the final incident is the most recent occurrence of the alleged acts of discrimination for which the complainant is seeking redress and I have jurisdiction to investigate all three issues referred by the complainant.”
16-101
The decisions in Waldron and Gillen permitted distinct incidents and acts to be adjudicated upon, provided the acts were related and arose on the same protected ground. This approach is consistent with the later judgment of the High Court in Louth VEC,169 where McGovern J, in determining the actions of the Tribunal in accepting jurisdiction over numerous claims, expressly took account of the fact that although the alleged acts of discrimination extended over a lengthy period of time (over 10 years), they were all on the same ground of discrimination, being that of sexual orientation. This finding was not disturbed on appeal.170
In this case only one actor is a continuing agent throughout the recruitment process and that is the Complainant. The question that arises has the Complainant made out a case that "establish a sufficient connection between the competitions, such that would support her [his] contention that they should be viewed as anything other than a series of independent unconnected competitions".
Connected Acts:
The following was submitted by the Complainant that alleges a continuum of discrimination as detailed in a final submission made by the Complainant dated the 8th of October 2023 and filed on the 24th of October 2023.
Background Information:
- a) First Interview - Partner Service Advisor (06/02/2014). • Ground of Discrimination: Race and age. • Details of Discrimination: During my first interview in 2014, I acknowledge that my English proficiency was not strong, but I received no feedback and was not given an opportunity to improve. Discrimination rooted in my race was apparent in this interview, which hindered my chances of success.
No fact has been detailed that could give rise to an inference of racial or age discrimination based on this description. The fact that no feedback was provided does not constitute a fact to support an allegation of age discrimination. The alleged discrimination rooted in my race was apparent is not specified or detailed to show that such conduct established a fact that could give rise to an inference of discrimination.
- b) Second Interview - Support Engineer (22/07/2014). • Grounds of Discrimination: Age and Victimisation • Details of Discrimination: In this interview, the role play exercise was unfairly impacted by another candidate's behaviour, leading to a rejection. The subsequent interview with a manager was brief and lacked substantive questioning. Additionally, the role play had a predefined solution, making it arbitrary rather than based on meritocracy. The other candidates were much younger, indicating a potential age bias. Furthermore, I was punished for someone else's behaviour, constituting victimization.
This description does not establish a fact that could give rise to an inference of Age discrimination and/or victimisation. The fact that other candidates were younger does not establish a basis to ground age discrimination. The Complainant must establish a fact that tends to show that he was treated less favourably because of his age. The Complainant asserts that the process lacked an objective basis and was arbitrary. That in turn does not establish facts that tends to show that he was treated less favourably to others because of his age. The fact or assertion that the behaviour of another candidate amounts to victimisation based on a ground as set out under the Act is vague. The behaviour of another candidate during a role play may have negatively impacted on his performance; however, that is not a fact that underpins discrimination and/or victimisation. It may have been unfair but that in itself does not amount to discrimination.
- c) Third Interview - Support Engineer (17/10/2014). Ground of Discrimination: Race and age. • Details of Discrimination: The scheduled interviewers for this interview were Maria redacted and Hannah redacted. However, when the interview took place, I was interviewed by Krystyna redacted and an unidentified man who was not introduced to me, possibly Alan redacted. The discrepancy between the scheduled and actual interviewers added to the confusion and disorganization of the interview process. During this interview, I encountered racism and discrimination. The feedback provided by SAP Ireland claimed that my English was subpar. This assessment was not based on factual evidence or objective evaluation but appeared to be rooted in racial bias. It is evident that the discrimination I faced in this interview was a continuation of the racial bias that had plagued previous interviews. Prior to the interview, I proactively offered to provide official documentation from the Spanish Ministry of Work to prove the authenticity of my working experience, in response to an accusation of lying about my previous work experience. However, the interviewer responded dismissively, saying, "you are a liar." This response indicated a clear bias against me based on my race and nationality, leading to an unfair and discriminatory interview process. It's important to note that during this interview, I was suffering from a tonsil infection and had a high temperature. Unfortunately, the interview had been scheduled for the latest available date, making it impossible to reschedule. This health condition further added to the challenges I faced during the interview. See attachment 1.
This interview took place in 2014. The alleged discrimination based on race and age is light on factual evidence. The allegation about lying is not directly linked to a ground of discrimination based on age. The allegation that it was alleged that his English was subpar could establish a fact of racial discrimination if the Complainant could show that in fact his proficiency was not subpar. However, the description of the interview is more linked to the Complainant’s illness as an explanation for his poor performance.
- d) Fourth Interview - Support Engineer (Cancelled by H&R). • Ground of Discrimination: Race • Details of Discrimination: After undergoing a tonsillectomy a few days before the scheduled interview, I provided Jana redacted from H&R with a document issued by the hospital confirming my recent surgery and the need for a brief recovery period. It's important to note that the recovery period was expected to be 3 or 4 days more, and I would have been fully recovered many days before the interview date. SAP policies explicitly require a new interview in such circumstances and prohibit the use of data from previous interviews. Despite my willingness and readiness for the interview, my application was met with a cancellation, raising concerns about discrimination on the grounds of health status and nationality. See attachment 2 and attachment 3.
This description establishes no fact to establish or give rise to an inference of discrimination on the ground of race. The narrative relates to an interview cancelled based on illness.
- e) Fifth Interview - Senior Support Engineer (01/09/2016). • Ground of Discrimination: Victimisation • Details of Discrimination: I was informed of my rejection by a friend, despite not receiving official communication. Subsequent inquiries about the rejection yielded vague responses. My rejection was communicated informally by a friend without official notice. This treatment can be considered victimization due to my previous complaints about unfair treatment. The lack of official communication only served to further my concerns about a biased and discriminatory interview process. See attachment 4.
This narrative does not contain a fact that grounds a claim for victimisation under Act. The fact that the Complainant has made previous complaints and alleges a vague explanation from the Respondent for his performance at interview does not give rise to an inference of victimisation.
- f) Sixth Interview - Support Associate (28/03/2017). • Grounds of Discrimination: Victimisation. • Details of Discrimination: Despite passing the role play scenario due to prior knowledge of the answer, I was rejected. This rejection appeared to be a result of victimization for previous complaints about unfair treatment. It also raised concerns of potential bias in the interview process, where candidates were much younger than me.
On the facts the Complainant has not established facts that give rise to an inference of discrimination. The fact that others were younger at the role play or that he passed and was rejected does not establish a fact that because he was older, he was rejected. At its height if such an inference was to be accepted as meeting a prima facie case, the delay to process this complaint until now stretches the principle that these acts are connected. The facts show that different personnel were involved in the decision-making process. The consistent choice by the Company not to recruit the Complainant has not been linked to a discriminatory ground based on a fact. Unless facts have been established that that give rise to an inference of age and/or race discrimination a prima facie test has not been made out. The fact of rejection does not establish an inference of victimisation.
A Complainant must meet a prima facie threshold and that is defined in the case law.
Prima Facie Case:
In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’ And in McCarthy v Cork City Council EDA0821 ‘that 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.’
I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:
[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.
The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.
And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’
It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)
The Complainant has not established facts that show a causal link between the alleged treatment of being unsuccessful at interview and the grounds relied upon.
- g) Eighth Interview - Support Associate 16/01/2020. • Ground of Discrimination: Victimisation and age. • Details of Discrimination: During the interview on January 16, 2020, the interviewers asked for confidential details about my previous job at Clearstream, which I couldn't provide due to legal constraints. This request put me in a difficult position, feeling victimized because I couldn't share confidential information. This situation likely impacted their decision during the interview. See attachment 5.
This narrative is entirely absent of any assertion or fact that could establish a prima facie case of victimisation and/or age discrimination.
- h) Ninth Interview - Support Engineer (30/03/2020). • Ground of Discrimination: Victimisation. • Details of Discrimination: After successfully passing an initial phone interview with a recruiter (Manpower), my application stalled without further communication. This lack of communication left me without closure and was part of a pattern of discriminatory treatment. Additionally, this interview was handled through a recruiting agency. I had not previously applied to the same position through the SAP Ireland website. However, false information about previous applications was provided by SAP Ireland to the recruiting agency, creating further confusion and uncertainty in the interview process. See attachment 6.
This narrative does not establish a fact to make out a prima facie case of victimisation.
Preliminary Decision:
I have determined that the matters detailed as an alleged continuum of discrimination on the ground of age and race and victimisation are not connected and are separate and distinct events. The Respondent stated that these events are unconnected to the matters detailed on dates on:
- Service Delivery Engineer Reg 272176 applied 19/12/2020; interviewed 22nd February 2021
- ABAP Developer applied 30th March but did not pass the initial screen process.
The Respondent in a detailed chronology submitted in October 2023 amended his complaint form and in turn that has been carefully considered by this tribunal.
The events (competitions) preceding those that occurred in 2021 and 2022 relate to unsuccessful job applications. There are significant breaks in time between some of the competitions complained about. It is also the case that different assessors/interviewers were involved over several years and no causal link has been demonstrated to exist between the alleged adverse treatment and the grounds relied upon. In these circumstances I find against the Complainant and that the events detailed to commence from 2013 up to 30th of March 2020 are not connected and therefore it follows that they are statute barred.
Summary of Complainant’s Case:
The Complainant lodged his complaint with the Commission on the 18th of June 2021. In a detailed submission dated the 8th of October 2023 and filed on the record on the 24th of October 2023 detail matters considered in the preliminary matter and the following events were alleged to constitute discrimination: i) Tenth Interview - Product Support Associate (23/09/2021). • Ground of Discrimination: Race and age. • Details of Discrimination: During this interview, I encountered ambiguous questions to allow to take a subjective decision. This assessment was not based on factual evidence or objective evaluation but appeared to be rooted in bias. j) Eleventh Interview: Support Associate (30/05/2022). • Ground of Discrimination: Race • Details of Discrimination: During this interview, I encountered racism and discrimination. Despite holding a certificate from Cambridge University, which validates my English proficiency, the feedback provided by SAP Ireland claimed that my English was subpar. This assessment was not based on factual evidence or objective evaluation but appeared to be rooted in racial bias. It is evident that the discrimination I faced in this interview was a continuation of the racial bias that had plagued previous interviews. No rejection properly communicated, just false feedback. See attachment 7. • Managed by a H&R person (Orla redacted) who had a conflict of interest. Complaint ignored by SAP H&R compliance department. See attachment 10. Additional Discriminatory Practice: Prior to the latest interviews, I proactively reached out to Millie redacted from SAP to inquire whether technical questions would be included in the interview. Ms. redacted explicitly stated that there would be no technical questions. In reliance on this information, I did not prepare for technical questions, as it was conveyed that they would not be part of the interview. However, during the interview, I was surprised to find that the interviewers indeed asked technical questions. When I questioned this inconsistency and reminded them of Ms. redacted assurance, they claimed that the technical questions were intended to assess my level of knowledge, even though I was explicitly told otherwise. This discrepancy and the subsequent refusal to acknowledge the misleading information further compounded the discriminatory nature of the interview. See attachment 8. k) Reporting and Lack of Investigation. It's essential to highlight that I took immediate action after each instance of discrimination that happened after January 2020. I reported the discriminatory treatment I experienced during interviews to the head of H&R and the compliance department within SAP. However, instead of conducting thorough investigations into these matters, these reports were seemingly disregarded or inadequately addressed. This lack of investigation and apparent attempt to hide the discrimination further compounded my feelings of discrimination and victimization, undermining the trust in SAP's commitment to its own policies. See attachment 9 and attachment 10. 2. The Complainant also referred to the following events in 2021 in his submissions to the Commission: 8th Interview Service Delivery Engineer - Financial Services (272176), date 22/02/2021 I was interviewed by Sanijan redacted, maybe Raji Srinivasan (she was on the phone) and maybe Matthew redacted (I think the guy at the interview was not the same whose picture is in Matthew redactedLinkedIn profile but I am not 100% sure about it). Anyway I was appointed with three of them. The feedback provided was: "technical reasons". Nothing else. - During the introduction part (at the beginning) I was interrupted by Sanijan Mathew Gmail - Complaint about discrimination at SAP hiring ... https://mail.google.com/mail/u/0/?ik=75279b3ffe&vi... 7 de 14 10/10/23, 0:22 Attachment 9.pdf 103 of 479 and I could not finish my introduction. Note that I made it as shorter as possible, note that it was not long, note that I was rejected many times before that interview because of not providing enough details about previous positions, note that candidates must be allowed to explain whatever they want, note also that it looks like that I was already rejected before starting the interview. Note that interrupting candidates when they are answering is a very rude and toxic behavior. - Right after Sanijan Mathew asked about a very specific technical detail about my first position working with SAP in 2006. Obviously I did not prepare technical questions about details of what I worked in 15 years ago, specially when it is not directly related to the position I was applying to. I prepared technical questions about the position that I was applying to. He asked about the difference between BAPI and BADI. Note BADI is used to extend SAP solutions with custom programs and BAPI is used to transfer data between systems. His question was like asking for the differences between a computer and a dog. I only remembered that they were two totally different things and it is what I answered. It is not a technical question, it looks like that he thought that I was lying and he was trying to debunk me. That is the problem I always have at the interviews at your company because of my age. They think I am lying because I am older than the rest of the candidates. The correct question to be asked is: "differences between BADI and UserExit". - Afterwards Matthew redacted and Sanijan Mathew made some more questions about my knowledge about SAP HANA and S4 that I answered correctly as I had prepared them, they were the normal technical questions that are asked in the rest of companies: technical questions about the position the candidate is being interviewed for. - At the end of the interview Raji redacted made some more questions about my latest position in Ireland. Note her English is not good enough to make interviews and she has an extremely strong accent. Note that I must be able to understand native peoples' accents, but I do not need to be able to understand people whose English is not good enough. I do not know if it was because of her English, because of her accent, because of her phone line or because of three of them together, but I could not understand her. In addition to that, rest of us were talking thru video call but she was just on the phone so I could not read her lips as well. I am not saying she is a bad software engineer, I am just saying she might not interview people if she does not improve her English or if she is not able to speak with an understandable accent. Note I was rejected many times before supposedly because of my English. Note it is not her fault, her English is good enough to work in Ireland, but she must not interview people, especially if she is just on the phone. Having a good level of standard English and being on a video call are not requirements applicable to interviewers despite they are applicable to candidates? Note that living or working in Ireland does not mean that somebody speaks good standard English. 9th Interview Product Support Associate (305900), date 23/09/2021 That interview was online. It was supposed to be with redacted, but there was a lady there as well whose name I do not remember, I am not sure if the interviewer was John redacted, many times I am appointed with a person but the interviewer is a different one. For that interview I had to await many days to have an answer and at the end, after asking for an update there was a person who called me on the phone, from an unidentified number letting me know the feedback, without being rejected before, so at the end he did not say that I had been rejected, I had to guess it because he still was encouraging me to apply another time. I emailed them back but I just got an email from Daniel Emerson with more excuses and cherry picking what he was going to answer. Gmail - Complaint about discrimination at SAP hiring ... https://mail.google.com/mail/u/0/?ik=75279b3ffe&vi... 8 de 14 10/10/23, 0:22 Attachment 9.pdf |
Summary of Respondent’s Case:
The Respondent stated that the Complainant has failed to make out a prima facie case for the matters referred to this tribunal and that it has jurisdiction to hear and that relate to acts that occurred during 2021. It respectfully stated that the matters referred from 2013 up to the 18th of December 2020 are out of time based on the complainant lodging his complaints with the Commission on the 18th of June 2021. The matters that the tribunal has jurisdiction to hear have not met the prima facie threshold. Tenth Interview - Product Support Associate (23/09/2021). • Ground of Discrimination: Race and age. • Details of Discrimination: During this interview, I encountered ambiguous questions to allow to take a subjective decision. This assessment was not based on factual evidence or objective evaluation but appeared to be rooted in bias There are no facts established that are linked to adverse treatment on the ground of age and race. The Respondent has evidenced that many applications from a diverse range of applicants, were received for each position that was advertised. A thorough screening process was completed, and candidates were called for interview based on merit alone; and the best of candidates, of different ages and ethnic backgrounds were hired. At the date of the hearing the Respondent does not know the age or precise nationality of the Complainant. The Respondent attracts a significant number of high calibre candidates. To succeed in this claim the onus rests on the Complainant to establish facts from which inferences of discrimination on the grounds of race and/or age have been raised and the Complainant has not met this threshold. The Respondent stated that in fact the Complainant applied for a significant number of roles during the period 1st December to June 2021 that it states is in time. The Complainant applied for a position on 20th February 2021, in total there were 159 applicants, of these 10 progressed to interview. The Complainant did not pass the initial screening interview. The Complainant applied for a role on the 4th of January 2021 along with 44 other applicants. 3 applicants were progressed to interview. The Complainant also applied for another role on the 4th of January 2021 and in total 115 applicants competed for the position. 11 candidates progressed to interview. The Complainant did not pass the initial screening process because he lacked the necessary software development/engineering experience. At no stage during this process did the Respondent know the race/nationality of the Complainant. The Complainant applied for another role on the 19th of December 2022 and in total there were 82 applications for this role. 18 applicants were called for interview. The Complainant was interview for this role on the 22nd of February 2021. The Complainant was unsuccessful at the interview stage based on a scoring matrix used to assess all candidates. The Complainant applied for a position on 30th March 2021 but did not pass the initial screen process.
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Findings and Conclusions:
On the facts and under cross examination it is clear that the Complainant wants to work for the Respondent based on his technical qualifications. That is clearly demonstrated by his continuing and ongoing application for a role with the Company. He has been unsuccessful to date and the disappointment arising from such communications must be difficult to accept based on his technical qualifications and other efforts he has made to persuade this Company to hire him. However, the fact that he now brings claims and relies upon the Employment Equality Act to ground his claims means that he must meet the legal threshold to sustain such an action. The onus is on the Complainant to establish a prima facie case. This means he must show that there are facts that give rise to an inference of discrimination on the grounds relied upon. The Complainant has established no causal link between his adverse treatment that is unsuccessful job applications; based on the grounds of age and race. He has not established facts that give rise to an inference of victimisation. In these circumstances the Respondent has no onus to prove anything. Based on the absence of facts that would meet the prima facie test I must determine that he was not discriminated agaimst on the grounds of age and race and, he was not victimised. I dismiss his complaints. This tribunal accepts the evidence provided by the Respondent that during the relevant period during 2021 the Complainant was unsuccessful for the roles he applied for as follows: The Respondent stated that in fact the Complainant applied for a significant number of roles during the period 1st December to June 2021 that it states is in time. The Complainant applied for a position on 20th February 2021, in total there were 159 applicants, of these 10 progressed to interview. The Complainant did not pass the initial screening interview. The Complainant applied for a role on the 4th of January 2021 along with 44 other applicants. 3 applicants were progressed to interview and the Respondent recruited a candidate with a masters in computing. This event has not been referred to the Commission. The Complainant also applied for another role on the 4th of January 2021 and in total 115 applicants competed for the position. 11 candidates progressed to interview. The Complainant did not pass the initial screening process because he lacked the necessary software development/engineering experience. At no stage during this process did the Respondent know the race/nationality of the Complainant. The Complainant applied for another role on the 19th of December 2020 and in total there were 82 applications for this role. 18 applicants were called for interview. The Complainant was interviewed for this role on the 22nd of February 2021. The Complainant was unsuccessful at the interview stage based on a scoring matrix used to assess all candidates. The Complainant applied for a position on 30th March 2021 but did not pass the initial screening process. The most recent submission received form the Complainant was on the 24th of October 2023. As the most recent and current statement of his case I have carefully reviewed this file. I have determined that no event/act as detailed in that file meets the prima facie test that could give rise to an inference of discrimination and/or victimisation.
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Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00044696-001/002: The Complainant has presented a detailed submission arguing that he was subject to continuing discrimination on the grounds of race and age and that he was victimised. I have determined that in fact the events relied upon from 2013 until the end of 2020 do not constitute a continuum of discrimination and are not connected to each other or to the most recent acts complained of. I have determined that the acts complained of are separate and distinct acts and events and therefore those acts and events that occurred during 2013 and up to the end of 2020 are time barred. I have determined that the most recent acts referred to this tribunal do not constitute acts of discrimination on the grounds of age and race as the Complainant has not made out a prima facie case; where he has established facts that gave rise to an inference of discrimination on these grounds. The factual matrix describes an extremely disappointed applicant who has pursued an ambition to work for this Company. His difficulty in obtaining employment with them was not based on discriminatory acts rather on the fact that many candidates also want to work with this Company. In any case a legal claim of this nature must meet the tests where evidence adduced establish facts that give rise to an inference of discrimination and/or victimisation. The Complainant has not met that threshold and therefore I must determine that he was not discriminated against on the grounds of age and race, and he was not victimised in any way by the Respondent. I dismiss all complaints as either being time barred or for failing to meet the prima facie test.
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Dated: 06th February 2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Prima Facie Test-Continuing Discrimination. |