The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts
EQUALITY OFFICER'S DECISION
(Represented by Ms. Christina Ryan BL on the instructions of the Northside Community Law Centre)
- V -
(Represented by Mr. Mark O'Connell BL on the instructions of Kelly Noone & Co. Solicitors)
File reference: EE/2007/024
Date of issue: 10 March 2010
Employment Equality Acts -Access to Employment - Race - Prima facie case
1.1. This dispute concerned a claim by Mr. Jey Lo (hereafter "the complainant") that he was subjected to discriminatory treatment contrary to section 6 and 8 of the Employment Equality Acts by Roly's Bistro (hereafter "the respondent"). The complainant maintained that when he sought an appointment for an interview on 31 October 2006 on foot of an advertisement in a named newspaper, the respondent treated him less favourably than a person with a different nationality would have been treated in similar circumstances.
1.2. The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 23 January 2007 under the Employment Equality Acts. On 30 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 22 January 2010.
2. Case for the complainant
2.1. The complainant claimed discrimination on the ground of his national origins in that he was treated less favourably than another person with different national origins would have been treated in relation to access to an interview contrary to his pertinent experience. Furthermore, it was submitted that he has suffered discrimination in relation to unlawful prevention from access to employment which the complainant contended was a direct result of his nationality. In particular, it was submitted, the complainant was treated less favourably than his Irish counterparts vis-a-vis access to employment and selection for interview by the respondent.
2.2. The complainant claimed that on 31 October 2006 he contacted a named employee as advised in an advertisement about a position for professional waiting staff with the respondent. The advertisement that he had come across that day stated:
"ROLY'S BISTRO, Ballsbridge require professional and talented waiting staff, previous experience essential, must be fluent in English. Contact [names and number added]"
2.3. Pursuant to this advertisement, it was submitted, the complainant telephoned the respondent at the given number and spoke with a named member of staff around 17.50 pm. He told her that he would like to apply for the job of waiting staff. The complainant submitted that the employee then asked him the following questions:
1. Do you have previous experience?
2. Where did you work before?
The complainant submitted that he replied to the questions with:
1. I have 20 years experience; and
2. I have worked in Malahide, Sutton, etc. mainly in Chinese restaurants.
The complainant submitted that the employee then asked him: "Where do you come from?" The complainant maintained that he informed her that he was from Hong Kong and submitted that, as soon as he had said this, the employee told him that all the waiting staff positions had been filled. The complainant submitted that the phone call was then terminated without further question. The complainant submitted that he was not given the opportunity to interview for the position as advertised in the named newspaper.
2.4. The complainant submitted that he was perplexed that all the positions where already filled bearing in mind that the advertisement had only appeared that day and also because the employee had begun asking him questions about his experience. He submitted that he told his Irish wife about the interview immediately afterwards and that he told her that he believed that the reason why he was not called for his interview was because of his nationality. The complainant submitted that he was very upset with the outcome of the brief phone call.
2.5. It was submitted that the complainant's witness and wife rang the number approximately 15 minutes later and enquired about the same job. She submitted in direct evidence that she spoke with a person who had the same name as the one her husband stated he had spoken with. The complainant's wife submitted that this phone call followed a similar format as the one her husband had described. She was also asked about her experience. The witness submitted that she told the respondent's representative that she had 9 nine years experience as a manageress, waitress and bar tender. She submitted that she also stated that she had worked in Chinese restaurants over the years. She submitted than on foot of this information she was then told that she should come along the following Saturday and was asked to bring her Curriculum Vitae with her. It was submitted that a similar add was subsequently run in a newspaper (copies shown at the hearing). While the witness had not overheard the initial phone conversation the complainant submitted he had with the respondent, she submitted that she spoke with her husband directly afterwards and that he was upset as a result of what had occurred.
2.6. It was submitted that the complainant wrote to the respondent on 1 November 2006 outlining the above facts. It was submitted that he was called for an interview in a letter dated 6 November 2006. The complainant submitted that this invitation is an admission of the respondent's failure to apply an open and transparent interviewing system thereby failing to prevent a discriminatory action by one of their employees in refusing to interview the complainant notwithstanding his capability and qualifications for the job as advertised.
2.7. It was further submitted that there was a failure on behalf of the respondent and its servants/agents to make appropriate enquiries as to whether or not the complainant was suitable for the role. It was submitted that the respondent had failed to give a reason as to why they did not wish to invite the complainant for an interview but had done so for his Irish comparator.
2.8. Furthermore, it was submitted that the respondent failed to practice a transparent and objective process in assessing a person's language skills. Such a failure, it was submitted would give rise to a practice that is indirectly discriminatory.
2.9. The complainant submitted Equality Authority v. Ryanair (EE/2000/019)
and Dr. Ronaldo Munck v. National University of Ireland, Maynooth (EE/2005/030) as authorities in the matter.
3. Case for the respondent
3.1. The respondent denied that the complainant was discriminated against and all allegations made by the complainant were denied in full. It was submitted that the complainant did not unlawfully or otherwise prevent the complainant from gaining access to employment. The respondent submitted that it requires full proof of each and every allegation set out in the complaint.
3.2. The respondent denied that the complainant's wife ever telephoned the respondent in relation to a job or that she ever applied for a position with the respondent. It was submitted that the complainant cannot use his wife as a comparator as the complainant has not suffered any discrimination by the respondent and because she never applied for a position with the complainant.
3.3. Furthermore, it was submitted that the complainant was only seeking redress. It was submitted that if the complainant was genuinely seeking employment he ought to have left his contact details with the named employee and/or would have contacted the manager of the restaurant when invited, in writing, to do so.
3.4. It was submitted that the respondent's staff profile has always been multicultural. It was submitted that the respondent's procedures used to employ staff are not merely compliant with the Employment Equality Acts 1998 and 2004 but are fair and just to all persons working the respondent. It was submitted that the respondent's approach to employment is based on ability and experience, not on racial, gender, age or any other issues. It was submitted that the respondent had never had to fight an allegation of this nature before.
4. Conclusion of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent.
4.2. From the facts of the case it is clear that the complainant rang the respondent and spoke with a named employee. This much was accepted by the respondent at the hearing. What is very much in dispute is whether the complainant was asked the question: "Where are you from?" I note that the respondent's witness stated that she could not think of any reason why she would have asked the complainant where he was from. She stated that she saw no relevance for such a question. She submitted that the restaurant was very busy at the time. It was also stated that the complainant, as a person who claims to have a lot of restaurant experience, ought to have known that he was ringing at a busy time. Regardless of these accounts, I find that no satisfactory explanation was forthcoming as to why the complainant was not asked to come along to an interview based on his stated experience. The witness suggested that this may have been because she already might have had enough candidates for trial runs of the required roles but she could not be certain of this. If this was the case, no reason was given as to why the named employee did not ask for the complainant's contact details in case these trials did not work out. I do not accept on the facts of this case that there is an onus on the complainant to insist in leaving his contact details with the respondent. Furthermore, the explanation concerning trial runs does not stand as a mere 15 minutes later the complainant's witness was offered an opportunity to attend an interview by the same person.
4.3. While I do not accept that the initial phone call was an actual interview per se, it is clear from the advertisement that the respondent sought applicants to contact it via the phone and that a few preliminary questions were made at this stage. On the facts of this case, it is clear that the complainant was asked a few questions but he was not asked to attend in person despite the fact that the complainant obviously has years of experience in restaurant work and, while his native language is not English, he appears to be fluent albeit accented in it. I have no reason not to believe his direct evidence in relation to the phone call and his wife's account of how upset the complainant was after he had made the phone call. While the respondent initially disputed that the wife had ever phoned the respondent, it was acknowledged at the hearing that there was no way for the respondent to be certain whether she did or not. However, I note that the witness was aware of facts pertaining to the subsequent interview process and that the only way she could have been aware of the day and time is through the respondent.
4.4. I note that the complainant, in his letter to the respondent, asks that the manager "deal with this matter as soon as possible, because at this stage and age, this [racist discrimination] would not be accepted and tolerated". I note that the manager did just this and offered the complainant an opportunity to contact him personally to arrange an interview at "our mutual convenience". This offer, including an emphasis that the respondent employed staff from a variety of backgrounds, was made within days of receipt of the complainant's letter. It is clear that the complainant made no further contact with the respondent.
4.5. The fact that the respondent's staff is multicultural was accepted by both parties. It was also acknowledged that a number of the respondent's staff did not speak English as their native tongue. Therefore, I do not accept that the respondent has a practice of excluding non-native English speakers or non-Irish persons from employment. Nor was there any suggestion at the hearing that the respondent treats any of its non-Irish staff less favourably than its Irish staff.
4.6. It is important to note that the initial phone call was merely an opportunity to inform potential candidates of a date and a time when it would be convenient for the respondent to interview them provided that the candidates had previous experience. I do not accept, on the evidence presented to me, the complainant's allegation that the brief phone call was used as a haphazard test to assess the complainant's language skills. Regardless of above, it is important that employers take care to ensure a transparent and consistent practice at all stages of an application process. I have been provided with no satisfactory explanation as to why the complainant was not offered an opportunity to attend an interview. I accept, on the balance of probabilities, that the brief conversation between the complainant and a named employee on the phone was conducted in such a manner that gave rise to the complainant's belief that his country of origin was the reason why he was told that there were no vacancies.
4.7. However, I find that it would have been prudent of the complainant to take the opportunity to contact the respondent after he received a written invitation to do so. The complainant, by his own submission, was aware that the respondent was still seeking workers. I do not accept the complainant's claim that the response letter can be construed as an admission of the respondent's agent's refusal to interview the complainant notwithstanding his capability and qualifications for the job as advertised. I find that such an understanding is too extreme in the circumstances of this case. I find that the letter was intended as a conciliatory gesture and as a clarification that the respondent welcomed experienced applicants regardless of their national backgrounds. It is regrettable that the complainant did not avail of the offer to contact the respondent as by doing so it may have afforded the parties an opportunity to clarify the respondent's position in relation to employing persons who are not Irish.
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the respondent did discriminate against the complainant on the race ground. In accordance with section 82(4)(b), I order the respondent to pay the complainant €500 in compensation. This amount reflects the fact that the complainant was offered an opportunity to avail of an interview within a reasonable timeframe by the respondent. I note that the complainant chose not to avail of this offer.
10 March 2010