Ahmed V ICTS (UK) Limited (Represented by Denis McSweeney Solicitors)
1.1 This dispute concerns a claim by Mr. Magdi Ahmed that ICTS (UK) Limited discriminated against him in terms of Sections 6(1), 6(2)(e) and 6(2)(h) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when he was asked discriminatory questions at an interview for employment.
2.1 The complainant alleges that he was asked discriminatory questions at an interview for a position of security agent at Dublin Airport with the respondent organisation. It
is his contention that these questions were discriminatory on the grounds of religion and race. The respondent denies the allegations and states that the complainant may have misunderstood what the interviewer was saying when he explained the nature of the position.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 4th December, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 27th January, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 7th May, 2003. Additional information was received from the parties and the last information was received on 5th June, 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 According to the complainant he attended for interview for the position of Aviation Security Agent in ICTS, Dublin Airport. This vacancy had been advertised in FÁS. The interview was scheduled for 3.00p.m. in the afternoon and the complainant states that he was treated badly by the interviewer in relation to the questions he was asked.
3.2 It is the complainant's contention that the interviewer (Mr. John Corcoran) asked him the following questions:
- Your family name is Ahmed?
- Do you remember Lockerbie?
- A number of questions about Islamic Terrorist Organisations in Sudan and the interviewer stated that he is training to deal with Sudanese since 1998.
- Do you know that the Sudan is one of the most terrorist countries?
- What about the Government in Sudan?
- How did you come to Ireland?
- Why are you in Ireland?
- Request to see travel documents and a comment that it was easier to get this travel document in Ireland.
3.3 The complainant says that he got out of control and informed the interviewer that he was not happy with the interview and asked to speak with the interviewer's supervisor but was told that the interviewer was the supervisor.
3.4 It is the complainant's contention that he has been discriminated against by the respondent by being asked discriminatory questions at interview on the grounds of his religion and his race. He asks the Equality Officer to investigate the matter.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent it prides itself as an employer that operates without prejudice and any complaint such as this is taken very seriously and the matter was thoroughly investigated. The respondent states that the version of events given by Mr. Corcoran in relation to this interview vary substantially from that given by the complainant.
4.2 According to the respondent the complainant applied for the position of Security Agent and attended for an interview with Mr. Corcoran on 12th July, 2002. The nature of the work of the respondent is as a provider of security services to the Aviation Industry and the bulk of the respondent's work is designed to limit the risk of terrorist attack to clients' assets. It is the respondent's contention that part of the interview involves an explanation of this and of the background as to the terrorist threat, etc.
4.3 The respondent states that the interviewer (Mr. Corcoran) strenuously denies that he asked the complainant about his religion and further states that this is not a question which is asked of any applicant. The respondent submits that the complainant did become quite aggressive during the course of the interview and the interviewer may have misunderstood the comments that he was making. The respondent states that in an effort to prevent a recurrence of this situation it is currently putting in place a system of predetermined questions to which the answers will be recorded and filed.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the respondent discriminated against the complainant by allegedly asking him discriminatory questions on the grounds of religion and race at an interview for employment. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.2 It is now established practice of Equality Officers in relation to the burden of proof in non-gender discrimination complaints under the 1998 Act, to follow the traditional approach of Equality Officers and of the Labour Court in relation to the gender and marital status grounds of shifting the burden of proof when the complainant has established a prima facie case. This is essentially the same practice as that subsequently applied by the European Court of Justice (in gender cases only) and set out in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20012. It is for the complainant in the first instance to establish as fact one or more of the assertions on which the complaint is based and having first established a prima facie case of discrimination, the burden of proof rests wiht the respondent to demonstrate that discrimination did not take place.
5.3 At the hearing of this claim the complainant submitted a further written submission. In this submission he notes the following additional issues in relation to his interview:
- There was only one interviewer conducting the interview and this the complainant alleges was against company policy which is to have two people interviewing applicants for employment;
- On the application form the complainant was asked his ethnic/national origin and he ticked the category entitled "Black African".
- The complainant alleges that the second question put to him at interview was "Are you Muslim?"
- The complainant alleges that the interviewer appeared to be attempting to put him off the job saying that the money and hours were not good and that the complainant would have to commence work at 6.30a.m.
- The complainant alleges that a FÁS representative spoke with the respondent's General Manager in which the General Manager is alleged to have said that each employee must be an "Irish National or a citizen of Ireland". He then proceeded to say that the respondent organisation has foreign workers working for it.
- According to the complainant the interviewer did not take any notes at interview.
5.4 It is accepted that the complainant arrived for interview on the appointed day. He alleges that he was the only person interviewed that day because a second interviewer was not available and all other candidates had been contacted in advance and had their interviews rearranged. As the respondent had been unable to contact him the complainant arrived for interview and was interviewed by one interviewer. The respondent states that it could not recall this and says that it carries out interviews sometimes with one interviewer and sometimes with two interviewers. On arrival the complainant was asked to complete an application form and this was handed to the interviewer in advance of the interview. There is an indication from the complainant that he became annoyed and frustrated with the interviewer and, when there was no superior officer with whom he could raise his concerns, the complainant accepts that he left the interview in anger. The complainant states that he was so angry at the interview that he threw his application form into the nearest bin.
5.5 The respondent denies that the complainant was asked if he was Muslim and says that there would be no reason why he should be asked about his religion. The respondent also states that it was not aware of the complainant's religion until it was set out in the submission from the complainant as submitted on the day of the hearing. The respondent further denies that the complainant was asked any questions in relation to the terrorist attacks in the Sudan. According to the respondent the interviewer commenced the interview by explaining the job to the complainant, why the job is done and the emphasis being placed on security at airports following Lockerbie, which is the biggest airport tragedy which has happened closest to Dublin. The respondent says that the interviewer asked the complainant how he proposed to get to work as he would have to report for duty at 6.00a.m. According to the respondent this question is asked of all candidates. The respondent says that the complainant would have been told about wages. He would have been asked about previous employment and he would have also been asked if he had a problem performing any of the duties of the job e.g. body searches, bag searches, etc. It is the respondent's submission that the complainant got upset by the interview and he held up a bundle of papers before the interviewer and indicated that they were letters of rejection, that all employers were racist and that he was withdrawing his application. The respondent denies that it is racist and says that it is an equal opportunities employer.
5.6 The respondent states that, on occasion, interviews are held with one interviewer and on other occasions there are two interviewers. Whether there are one or two interviewers depends on availability on the day. According to the respondent it does not have a policy of having two interviewers at interviews as alleged by the complainant. I note that the respondent in its Equal Opportunities Employment Policy says "Wherever possible, more than one person should be involved in the selection interview". The respondent states that the General Manager does not recall any telephone conversation with a FÁS representative as alleged by the complainant.
In relation to the note of this conversation the respondent states that it is contradictory as it says on the one hand that "Each employee must be an Irish National or a citizen of Ireland" and on the other that "the company has Indian, Pakistani and Ghanian employees". According to the respondent it operates an equal opportunities policy and it has a staff of 80 employees in Dublin from the following countries namely Ireland, England, Italy, Germany, America, Australia, Nigeria and Pakistan. In relation to the application form which the complainant completed on his arrival for interview the respondent states that the complainant is not asked to complete his ethnic/national origin on this form. According to the respondent there is another form given to applicants. This form is for statistical purposes and it clearly states that it is not necessary for applicants to complete it. The form does ask applicants to tick the appropriate category in relation to their ethnic/national origin. The form is completed in strict confidence and applicants do not put their name to it. According to the respondent the form, if completed, is given to the interviewer.
5.7 In this claim there are two conflicting views in respect of the interview undertaken by the complainant. I note that the account of the interview given by the complainant in his original submission does not contain any reference to a question about his religion yet in his second submission he states that this was the second question he was asked. The allegation that the complainant was asked his ethnic/national origin on the application form cannot be confirmed as the complainant destroyed the evidence. The respondent submitted a blank application form following the hearing of this claim and I note that applicants are not asked to complete their ethnic/national origin on the application form.
5.8 In the present situation where there was one interviewer interviewing the complainant and no notes were taken at the interview it is difficult for the complainant to substantiate his allegation of discrimination. However, the complainant did not help his case by giving conflicting evidence in his own submissions and by destroying his application form. I find that, in this case, the complainant failed to establish a 'prima facie' claim of discrimination.
5.9 I consider that the respondent in this claim was poor at defending itself in this action.
To operate open, fair and transparent procedures in future I recommend that it undertake the following:
- At least two interviewers should be present at all interviews;
- Questions at interview should be based on a standard set of criteria. The questions asked of each applicant do not necessarily have to be the same;
- A standard outline of the respondent organisation and the job should be prepared and delivered to all applicants;
- Notes should be taken at interview;
- Application forms and interview notes should be retained after interview;
- The non obligatory form given to applicants to complete should be accompanied by an envelope into which the applicants can put the form on completion and they should be able to deposit the form in a box specifically for these forms rather than have to pass it to any other person;
- The Equal Opportunities Employment Policy should contain the relevant provisions of the Employment Equality Act, 1998 (not just the relevant provisions of the UK legislation.
6.1 I find that ICTS Limited did not discriminate against Mr. Magdi Ahmed on the grounds of his religion and his race in terms of Sections 6(1), 6(2)(e) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act by allegedly asking him discriminatory questions at interview for employment.
12th June, 2003