FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : ICE GROUP BUSINESS SERVICES LIMITED (REPRESENTED BY DOYLES SOLICITORS) - AND - BORZENA CZERSKI (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 Of The Employment Equality Act, 1998. Dec-E2006-027
BACKGROUND:
2. A Labour Court hearing took place on Tuesday 19th February, 2008. The following is the Court's Determination:
DETERMINATION:
Ms Czerski (the complainant) contends that she was discriminated in circumstances amounting to discrimination on grounds of race and gender, contrary to Section 8 of the Employment Equality Act, 1998 (The Act) and in terms of Section 6 of that Act. ICE Group, an employment agency - (the respondent) rejected the claim of discrimination. The claim was considered by an Equality Officer of the Equality Tribunal and his decision dated 13th June 2006 found:
(i) the Complainant had failed to establish aprima faciecase of discrimination in relation to her assertion that she was directly discriminated against by the Respondent on grounds of race and gender,
(ii) the Complainant had failed to establish aprima faciecase of discrimination in relation to her assertion that she was indirectly discriminated against by the Respondent on grounds of gender,
(iii) the Respondent indirectly discriminated against the Complainant on grounds of race contrary to section 31 of the Employment Equality Act, 1998.The Equality Officer ordered the respondent to pay €7,000 by way of compensation to the complainant.
The Complainant appealed the Equality Officer’s decision that she had failed to establish aprima faciecase of discrimination on grounds gender, (she did not appeal the decision of direct discrimination on race grounds). Furthermore, she appealed the decision that she had failed to establish aprima faciecase of indirect discrimination on grounds of gender.
The Respondent appealed against the Equality Officers decision that the Complainant was indirectly discriminated against on the grounds of race.
Background
In the week beginning 6th August 2001, the respondent placed an advertisement in the Western People newspaper looking for temporary production operatives on behalf of a client company (not named in the advertisement), hereafter referred to as Company X.
The Complainant replied to the advertisement and was sent a Database Registration Form to complete which she duly did and returned it. On the form she provided details of one referee, however, the form required two references.
The Complainant attended for interview on 20th August 2001 with the Respondent and was interviewed by Ms. G. The following day, Ms. G telephoned her to inform her that there were no positions available for her at that time, but that her application would be held on file and the agency would contract her should any vacancies arise. Early in September 2001, the Respondent visited the Company that the Complainant was working for at the time (Company Y), to recruit workers for jobs in Company X, but the Complainant did not attend for interview at that time.
The Complainant contends that she was not offered employment on grounds of her gender and race and that this constitutes unlawful discrimination in terms of Section 6 of the Employment Equality Act 1998, (the Act) contrary to Section 8 of the Act.
Submissions on behalf of the Complainant
Ms. Aideen Collard B.L. on behalf of the Complainant submitted that the requirement to furnish two career references constituted indirect discrimination on the gender ground, insofar as it operated to the disadvantage of women, who take a break from the work place in order to care for children, when they subsequently seek to return to work and access employment.
Counsel stated that the Complainant had moved to Ireland prior to which she had been working in Poland. She did not work outside the home from 1986 until 2000 as she was caring for her family. During this time she had been assisting her husband in his upholstery business.
Ms. Collard submitted that the Respondent’s strict requirement for two career related references, with no alternative for non-Irish applicants and without any reasonable justification for the rule, had a disproportionate effect on the Complainant and consequently was discriminatory on race grounds.Ms Collard submitted that it would be more difficult for a Polish National rather than an Irish National to furnish two such references.
In support of this contention, Counsel citedCampbell Catering Limited v Adernoke Rasaq EED048, in which this Court held:
“Before the complainant can succeed in her claim, the Court must be satisfied that she was treated less favourably that a comparator of a different racial origin is, was or would be treated in similar circumstances as those arising in the present case. The general approach which should be adopted in considering cases of racial discrimination was laid down by the House of Lords in Glasgow City Council v Zafar [1998] 2 All ER 953. This case was subsequently adopted in this jurisdiction by Quirk J in Davis v Dublin Institute of Technology, High Court, Unreported, 23rd June 2000 . In Zafar Lord Browne-Wilkinsonpointed out that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination and it is for the respondent to provide a non- discriminatory explanation. This approach was adopted by this Court in Natoko v Citibank[2004]ELR 3 116wherein the Court explained its underlying rational as follows:
This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement.
Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof.
This approach is entirely consistent with the procedural rule formulated by this Court in Mitchell v Southern Health Board [2001] ELR 2001 and which is normally applied by the Court in all cases of discrimination. Under this rule, a complainant bears the onus of proving facts from which discrimination may be inferred. If that onus is discharged, the respondent bears the burden of proving, on the balance of probabilities, that there has been no infringement of the principle of equal treatment.That is the approach which the Court has adopted in this case.”
- “There is, however, another issue arising in this case to which, for the sake of completeness, reference should be made. In Case (C-279/93) Finanzamt Koein- Altstadt v Schumacker [1995] ECR 1-225 the European Court of Justice held that it is settled law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations.
It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defence. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and couldin itself amount to discrimination.”
Counsel contended that the Respondent’s statement that Company X was recruiting men only clearly showed an intention to discriminate on the grounds of gender.
She stated that there was no indication that the Complainant was ever informed in clear and unequivocal terms that they were awaiting a second reference from her. The Complainant was informed on 27th August 2001, that there were no vacancies in Company X when there clearly were as only days later the Respondent came to Company Y to carry out recruitment interviews for Company X. She also contended that in so far as manual handling was referred to in both the advertisement for the post and heavy lifting was mentioned by Ms. B, the post of production operatives was perceived by the Respondent as not be open to women.
She maintained that while these facts alone may not be sufficient probative value in themselves to raise an inference of gender discrimination, when taken together, an inference of discrimination arises, which it is up to the Respondent to rebut.
To substantiate this contention, Counsel citedPRK Logistics Ltd v Mary Conroy EED039
- “On balance, the Court prefers the evidence of the complainant to that of the respondent. The Court is thus satisfied that the complainant was told that her inability to lift heavy weights unaided rendered her unsuitable for retention. The evidence further established that male employees experienced similar difficulties. It appears that the respondent either failed to make sufficient enquiries to establish that this was the case or attached less significance to these difficulties in the case of men. The Court is satisfied as a matter of probability that the respondent did draw an unwarranted connection between the complainant's difficulty in lifting weights and her gender. This, prima facie, indicates that the complainant's gender was a factor which influenced her selection for redundancy.”
Mr. Adrian Twomey B.L, Counsel for the Respondent denied that it discriminated against the Complainant or that it ever discriminated against jobseekers. He stated that the Respondent routinely placed both males and females in employment and did so in the case of Company X also.
He said that the fact that the Complainant submitted only one referee was problematic as the Respondent's own policy and that of it’s clients required the names of two potential referees from all job seekers before placing a person with one of its clients. Employers must be able to adequately verify that individuals to whom they are considering offering employment have a tack record of providing adequate service to their previous employers. To deny them that right would be to undermine a practice that is both necessary and beneficial and fulfilled the requirements of objective justification.
When the complainant stated at interview that she could only supply the name of one employment related reference, Ms. G asked her if she could provide the name of any individual who might be able to give her a character reference, but she could not do so. Therefore, the Respondents had no option but to advise her on 27th August 2001 that no suitable employment was available at that time. All applicants who had been placed with Company X had provided the names of two referees.
Counsel denied that the Complainant was told that Company X were only looking for men to fill the relevant positions, Ms. B did explain to her that the job concerned involved manual lifting, as was advertised in the newspaper advertisement, subsequent to the initial advertisement that had prompted the application.
Mr. Twomey submitted that the Complainant had not drawn any meaningful link between her Polish nationality and her failure to secure employment either with the agency itself or Company X. The Respondent has in fact hired non-Nationals.
The Evidence
Complainant's Evidence
In her evidence the Complainant told the Court that she was from Poland. She had worked as a Clerk with the Polish government from 1st August 1983 to 30th August 1986, when she moved to Ireland. During the years 1986 to 2000 she looked after her family in the home and helped her husband in his business. She worked with Company Y from 13th March 2000 until September 2001. In August 2001 she replied to the newspaper advertisement, placed by the Respondent. She completed the registration form for their database and told Ms. G that she only had one name to put forward as a referee, i.e. from her manager at Company Y. She told Ms. G that she might be able to get a second reference from Poland, but that there might be difficulties translating it. She denied that she was asked to produce a character reference and said that she could have supplied one as she had had to supply such references when she applied for Irish citizenship. She attended for interview on 20th August 2001, was interviewed by Ms. G. The following week she telephoned Ms. G. to find out about the advertised positions and was told that here was no suitable position available at that time, but that her application would be kept on file.
Around this time, the Respondent attended at Company Y to recruit persons for Company X, as Company Y were making people redundant. She said that she did not put her name forward for that process as her application was already on file with the Respondent.
Later on when she discovered that people from Company Y were recruited to Company X, she telephoned the Respondent to find out why her application was not being put forward.
In Ms. G’s absence, she spoke to Ms. B., who told her that Company X were only looking for men, but that the person handling the Company X account would be in touch with her. She heard nothing further from the Respondent.
She told the Court the reason she believed she was not recommended for a position in Company X was because she could not supply the names of two referees.
She was strong in her conviction that the reason she was denied access to employment was due to the fact that she could not produce two references. She gave evidence of having worked, on summer relief, with the Western Health Board, prior to her employment with Company Y. For that position she supplied two character references.
Ms. G, Senior Recruitment Manager, stated in her evidence that it was unusual to look for character references, although if employment references were not available then it had no difficulty accepting character references. She told the Court that the agency’s policy on two references was clearly explained to the Complainant and that in the absence od employment references, character references would be acceptable. A copy of her notes taken following the interview on 20th August 2001, and retained on the Company’s computerised Staff Recruitment Management System, states:
- …. Lovely lady. Originally from Poland Has been living in Ireland for the last 15 years. …. Bozena worked as an accounts assistant when she was in Poland. When she moved to Ireland, she worked in the home, and would have done her husbands books. Her first job with [Company Y] and she is currently working there. I think she would work well in [Company X]. She has ambition in her and wants to do well. References may be a problem. When I asked about character references, she said there was no one. They would have too many different customers in the business. I asked her about [Company Y] and if there might be anyone there we could talk to in confidence. She said she would come back to me on this. I really would like to recommend her for [Company X]. Will need to talk to them about reference. …
Ms. G explained that as the Complainant failed to supply the name of a second referee, it was not possible to recommend her for employment with Company X.
Ms. C. owner of the recruitment agency, in her evidence to the Court, explained the company’s policy regarding the necessity for two named referees. She stated that it was the standard in the industry to seek two career referees, however, character references would be acceptable in the event of the non-availability of employment references. She told the Court that it would be entirely in her interest to put forward as many names of potential candidates to their clients, as their fees were measured by the number of vacancies they filled. Therefore, it had no reason not to put forward a candidate who was otherwise considered as a very suitable candidate. Ms. C produced a copy of the terms of the agreement entered into with Company X for the recruitment of staff, this included the following:- “I.C.E. Group will flag to [Company X] when an employee who requires a work permit is within one month of the permit expiring.”
- “2 Career references will be checked prior to starting candidates in [Company X]”
Ms. C. told the Court that it has regularly sought character references where employment references not available and she gave examples – part-time farmers seeking employment, mothers returning to work, young people starting work. In such circumstances, the agency would often look for character references from school principals, priests, etc. She also said the agency accepted references from abroad.
Ms. C supplied documented evidence to substantiate the position that the agency would not put forward any person who did not supply two named referees.
The Burden of Proof
In cases of alleged discrimination the Court normally must first consider the apportionment of the probative burden as between the parties. This is now governed by s 85A of the Act, as inserted by s 38 of the Equality Act 2004. This Section provides as follows: -
- 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
The Court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination. (seeMitchell v Southern Health Board [2001] ELR 201)
As was stated inGlasgow City Council v Zafarthis approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement.
Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.
The Applicable Law
The Respondent is an employment agency and therefore “a provider of agency work” within the meaning of section 2(5) of the Act.
Section 8(1) of the Act provides that an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against a worker on any of the discriminatory grounds, inter alia, in relation to access to employment. Section 8(2) of the Act provides that in relation to an agency worker discrimination can only occur where that agency worker is treated less favourably (on one of the discriminatory grounds) than another agency worker is, has been or would be treated.
The Complainant must, therefore, make out her case of discrimination by reference to the treatment of a comparator of a different nationality in circumstances similar to her own and that comparator must be another agency worker. There is no actual comparator in this case but the Complainant can rely on a hypothetical agency worker ("or would be treated") of a different nationality. In establishing how such a hypothetical agency worker would be treated the Respondent emphatically stated that its policy was to seek the names of two referees before recommending a person for employment with one of its clients, regardless of their gender or nationality.
If the Respondent did not generally abide by this requirement and the Complainant was singled out for special treatment, it would be reasonable to believe that she was treated less favourably than another agency worker of a different nationality would be treated.
Hence, the only fact in issue in this case is whether the Complainant’s gender and nationality were factors which influenced the decision not to recommend her for employment with Company X, thereby rendering the Respondent liable for unlawful discrimination.
Conclusions of the Court
The Court has considered all of the evidence adduced and the submissions of the parties.
1. Direct Discrimination on the Gender Ground
The Court has in the first instance, examined the claim of direct discrimination on gender grounds. The Complainant stated that when she telephoned the Respondent and spoke to Ms. B, she was told that Company X was looking for men. Ms. B. was not available to give evidence. The Court was supplied with two advertisements, which is said were the relevant ones used when the agency were seeking workers for Company X. These advertisements do not mention that the positions were open to men only; one does refer to manual handling. The Court accepts that its feasible that the jobs involved manual handling, however, it is equally clear that the Respondent recommended females and that females were placed with Company X at the appropriate period in 2001. The Court is not satisfied that the facts as presented are sufficient to raise an inference of discrimination. Therefore, it finds that the Complainant has failed to establish aprima faciecase of direct discrimination on the gender grounds.
Indirect Discrimination on the Race Ground
Section 31 of the Act, which prohibits indirect discrimination inter alia on the race ground,states as follows: -
- 31.—(1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment—
(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8(1),(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and(d) cannot be justified as being reasonable in all the circumstances of the case, then, subject to subsections (4) and (5), for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8, on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).
The Court must consider whether the impugned requirement to produce two named referees cannot be complied with by a substantially smaller number of persons who are non-Irish than Irish nationals. And if it so finds, the Court must proceed to consider whether that requirement comes within the ambit of Section 31 of the Act and is indirectly discriminatory unless it can be justified as being reasonable in all the circumstances of the case.
In making it’s findings under this ground, the Court accepts the Respondent's evidence that it did inform the Complainant that a character reference would be acceptable as one of the references.
In those circumstances the Court cannot see how a non-national would be placed at any greater disadvantage than a National. While the Court accepts that there are inherent difficulties in applying any policy without regard for individual circumstances, the Court is of the view that a requirement to provide two references one of which might be a character reference, does not constitute indirect discrimination on the race ground. Furthermore, the Court accepts that in the circumstances of the Respondent’s business as an employment agency, where it is dependent on its reputation for clients, the requirement to seek two named referees in order to recommend a person for employment with its clients, is a reasonable requirement in the circumstances.
Indirect Discrimination on the Gender ground
Article 2 of Directive 97/80 defines indirect discrimination on the gender ground as :
“indirect discrimination shall exist where an apparently neutral provision ,criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that proviso criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex”.
There is no doubt that having a criteria for selection for employment which is applied rigidly and without regard for individual consequences may lead to circumstances in which an employer or recruitment agency will breach the provisions of the Act. However in this particular case, the Respondents rigid rule was softened by their requirement that a character reference could be furnished if no employment reference was available. The Complainant may have laboured under the misapprehension that only two previous employment references would be suitable but the Court accepts the Respondents evidence in this regard. Ms. C explained the reasons for this policy and Ms. G’s notes, taken after the interview on 20th August 2001, clearly indicate their desire to put the Complainant’s name forward for employment with Company X.
The question the Court must then ask itself is whether the requirement to have two references, one a character reference, disadvantaged a substantially higher proportion of women than men. No statistical evidence was advanced by the Complainant and the Court from it’s own experience, cannot see how such a requirement, in the circumstances of the present case, could be regarded as discriminatory. It should be stressed however that the imposition of a rigid requirement such as requiring all prospective applicants to have two employment references could lead to circumstances in which a prospective employer or recruitment agency might find itself falling foul of the provisions of the Act. However, in the circumstances of this particular case the Court does not find the requirement to have two references one of them a character reference to be discriminatory. Having made this finding, the Court does not have to examine whether there was objective justification for the requirement.
Determination
For all of the reasons set out above, the Court finds that the Respondent did not discriminate against the Complainant either directly or indirectly on gender grounds, or indirectly on the grounds of her nationality contrary to the provisions of the Act. Accordingly, the decision of the Equality Officer is varied, the Respondent’s appeal is allowed and the Complainant’s appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th May 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.