The Employment Equality Acts 1998 and 2004
Decision No: DEC-E2007-006
BMS Sales Ltd.
(represented by John Shiel Solicitors)
File No: EE/2005/017
Date of issue: 1 February 2007
1.1 The case concerns a claim by Mr. Paul Cunningham that BMS Sales Ltd., Dublin directly discriminated against him on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to sections 8 of the Acts.
2.1 The complainant submits that the respondent provided him with a registration form requesting his age and date of birth. He completed the form and gave an incorrect age but did not give his date of birth. A few days later, the respondent sought to pursue the matter with him and he was told that without the information in relation to his age, the respondent would not progress his application. The responded submits that had the complainant not proved to be evasive and uncooperative in providing the respondent with information followed by deliberately providing incorrect information, it would have had no reservations in representing him. The respondent also submitted that the complainant indicated when it pursued the matter with him that he no longer had an interest in dealing with the respondent.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of Equality Investigations on 18 January 2005. On 16 March 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 8 May 2006 and from the respondent on 16 June 2006. A joint hearing of the claim was held on 11 January 2007 having previously been adjourned.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant met with Mr. H of the respondent in their offices in College Green on 19 November 2004. The receptionist asked him to complete a registration form with his personal details. On meeting Mr. H, the complainant submits that he pointed out that a lot of the information was irrelevant and invasive. Questions such as "living with parents/renting/mortgaged accommodation", "number of children", "age" and "date of birth". He replied that prospective employers use this information to decide if a candidate is likely to remain with them if offered employment. The complainant queried why he needed to give his age as it was not relevant to his employment. Mr. H stated that when he is face to face with a possible employer and is asked the question as to the age of the candidate, he felt that if he was not able to answer accurately, he would not be doing his job. The complainant submits that he gave his age as 37 and that he did not state his date of birth.
3.2 Mr. H then asked him to join him in an interview room. He went over his CV with him in detail, questioned him on previous employments, what his future plans were and made extensive notes on his application form which he had filled in earlier. He said that he had a few possible opportunities available but one in particular would be suitable to his skill sets. He said that the company in question were looking for people with IT sales skills particularly with storage and server sales experience. The complainant submits that he had both skills which were detailed on his CV. Mr. H said that he would get an interview set up with the company as soon as possible and would revert when same was arranged.
3.3 On Monday, 22 November, he received a phone call from Mr. H querying his age. Mr. H said that he noticed his age on the application form and that he wanted to check a few things against it. The complainant submits that he again reminded Mr. H that his age was not relevant to the employment opportunity that he was putting him forward for. He again insisted that he discuss his age. The complainant submits that he stated to Mr. H that he felt he had enough information to put his name forward as he had said on the previous Friday. The complainant said that he was not willing to discuss any further details in relation to his age. Mr. H persisted in asking further details and stated that without further information on the complainant's age, he would not put him forward for employment.
3.4 On 21 December 2004, the complainant had a conversation with Mr. H. At that stage, he told him that there were other factors in not putting his name forward. He said that if the complainant was not willing to give him all the information he required that he must be hiding something.
3.5 The complainant believes that he had the skill sets and experience for the post referred to by Mr. H. The particular job for which the respondent was recruiting was for a professional sales person who would be selling server and storage solutions directly to the prospective customers. He had previously sold servers and storage solutions and had been one of the highest achievers in his section and he had the customer experience required from his time with another employer when he met customers in a face to face sales environment.
3.6 He believes that he was discriminated against on the basis of his age. At the time he was forty seven years old although he appeared younger and he submits that he was shocked a few days after submitting his application form when he received a phone call from Mr. H insisting on obtaining his date of birth.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that applicants are assessed purely on their experience and sales ability. It submits that they regularly meet applicants from many backgrounds and different walks of life and endeavour to help them in their search for sales opportunities, placing and representing many applicants over the age of 47.
4.2 The complainant stated on his application form that his age was 37 despite being 47. As a responsible sales recruiter, there has to be a confidence that the details provided by candidates are correct and accurate in order to build a successful working relationship. In addition, the respondent maintains a duty of care to both clients and candidates alike and information must be correct information.
4.3 On interviewing the complainant, Mr. H, Consultant on behalf of the respondent submits that he was more than happy to represent the complainant given his background, however, it was obvious after the interview by looking at his CV and in particular, the number of years he had been in employment that the details pertaining to his age were misleading. If any candidate is found to have intentionally provided incorrect information to the respondent in any area whether this is in the area of previous employment, salaries, qualifications or personal details, the respondent as responsible recruiters would not be able to confidently represent the individual to any of its clients.
4.4 The respondent submits that had the complainant not proved to be initially evasive and uncooperative in providing the respondent with information, followed by deliberately providing incorrect information, he would have had no reservations in representing him given his strong sales background.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
Caselaw on establishing a prima facie case of direct discrimination
5.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 Subsequently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board  ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." (2)
More recently, the Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment:
"It is accepted that if the complainants make out a prima facie case of discrimination, the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court in Teresa Mitchell v Southern Health Board  ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent." (3)
5.5 The respondent in this case stated in its written submission to the Tribunal that "On interviewing the candidate I was more than happy to represent him given his background, however, it was obvious after the interview; that by looking at the Curriculum Vitae provided by Mr. Paul Cunningham; and in particular the number of years he had been in employment, that the details pertaining to his age were misleading (when cross referenced to the information, that he had filled out on his application form)"
The statement continued "Had Mr. Cunningham not proved to be initially evasive and uncooperative in providing BMS with information, followed by deliberately providing incorrect information I would have had no reservations in representing him given his strong sales background."
The latter paragraph cites two reasons for the respondent not representing the complainant, the first being that the complainant was initially evasive and uncooperative in providing the respondent with information and the second being that the complainant deliberately provided incorrect information. Based on the written statement of the respondent, it is clear that the respondent considered the complainant evasive and uncooperative in relation to providing the information on his age and date of birth.
5.6 Whilst the respondent was legally represented at the hearing, Mr. H did not attend on behalf of the respondent to give evidence. I have therefore made my decision without the benefit of hearing his oral evidence. A copy of the registration form completed by the complainant was provided by the respondent's solicitor at the hearing and it is the case that the form sought the age, date of birth, marital status, nationality and number of children of applicants. The complainant had a difficulty with providing the information sought and provided an incorrect age. When Mr. H phoned the complainant on Monday 22 November 2004 to pursue the matter of the complainant's age, a disagreement ensued between the parties. The respondent in its written evidence to the Tribunal stated that the complainant "did not meet the client's criteria for the role. The applicant was informed of this by telephone and was approached politely concerning this and also to clarify certain areas which remained unclear on a standard form filled out by Mr. Cunningham prior to the interview." The complainant gave oral evidence at the hearing that on Monday 22 November 2004, Mr. H phoned him and kept insisting that his age was relevant to his application and he insisted that it was not. He also gave oral evidence that he did not state that he did not have an interest in dealing with the respondent. This is contradictory to the respondent's written statement on the matter and as Mr. H was not present to give evidence on the issue, the evidence of the complainant is to be preferred.
5.7 The Labour Court has stated in relation to age discrimination "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." (4) The Labour Court went on to find in that case that "..., the question put to Mr. Flood at interview concerning his age and the data concerning the age profile of those recruited by the respondent since 1992, establishes an evidential nexus between the unfair treatment of he complainants and their age. These are facts of sufficient significance to establish a prima facie case of discrimination and so shift the probative burden to the respondent."
5.8 The respondent sought the complainant's date of birth and age on the registration form. He refused to provide his date of birth and gave an incorrect age and the respondent pursued the matter with him a few days later. I note the respondent's statement that it would have had no reservations in representing the complainant given his strong sales background had he not been evasive and uncooperative in providing the information in relation to his age followed by deliberately providing incorrect information. It therefore appears to be the case that as the complainant was reluctant to provide the information and then provided an incorrect age, his application to register with the respondent was not progressed. In this case, on the basis that the respondent sought the complainant's age and date of birth on the registration form and subsequently pursued the matter with him, I find that the complainant has established a prima facie case of discrimination on the age ground in relation to the respondent's refusal to represent him in respect of sales opportunities with clients.
5.9 The respondent made available a copy of its Equal Opportunities Policy and I am not satisfied as to the adequacy of the policy which refers only to UK legislation and does not appear to have been drawn up for this jurisdiction. I shall therefore be referring to this matter in my order for redress.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Acts in relation to the respondent's refusal to represent him in respect of sales opportunities with clients.
6.2 In accordance with section 82 of the Acts, I hereby order that the respondent:
(i) pay to the complainant the sum of €5,000.00 compensation in respect of the act of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(ii) draft an Equal Opportunities Policy relevant to this jurisdiction.
1 February 2007
(1) DEE011 15 February 2001
(2) Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
(3) Portroe Stevedores v. Nevins, Murphy, Flood EDA051 11 February 2005
(4) Portroe Stevedores v. Nevins, Murphy, Flood Determination No. EDA051 11 February 2005