EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2012-115
Mr Kamil Jurczewski
Kerry County Council
File Reference: EE/2008/733
Date of Issue: 4th September, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(h) Race Ground - Section 8(1)(a), Access to Employment -Lifeguard Recruitment Competition - Polish candidates - Vicarious Liability - Inference of Discrimination
1.1. This case concerns a complaint by Kamil Jurczewski (hereinafter referred to as "the complainant) that he was discriminated against by Kerry County Council (hereinafter referred to as "the respondent") on the ground of race, contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to access to employment, contrary to Section 8(1)(a) of the Acts.
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 4th November, 2008, alleging that the respondent had discriminated against him on the ground of race.
2.2. Written submissions were received from both parties. On 17th August, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 12th January, 2012. Further information was sought from the parties and final correspondence in this respect was received on 1st March, 2012.
3. Summary of the Complainant's case
3.1. The complainant, a Polish national, stated that he and his friend, Mr A, applied for a post as Lifeguard with the respondent in April 2008. He stated that he was informed that he would be required to attend for the 'indoor test' on 3rd May, 2008 and for "outdoor (aka Open Water) testing" on 4th May, 2008. He outlined his qualifications for the post in question which he had obtained in Poland. He added that he had worked in the 2006 summer season in Donegal as a Senior Lifeguard and that his qualifications had been accepted as being suitable for that job. He could not clearly state whether the recruitment process for that post was the same as that carried out by the respondent. He stated that it was discriminatory to require him and the other Polish candidates to do an additional test when none of the other candidates were required to do so.
3.2. The complainant stated that an important reason for applying for the post was that the recruitment process was advertised as including extra marks for First Aid, in which he had a specific qualification. He stated that he was not given the extra marks for these qualifications. The complainant also raised an issue with the fact that the respondent had stated the following at the outset of the 'indoor test': "hello, how are you travellers". He said that he knew being referred to as a traveller was impolite in Ireland. He said that the person who said this was not performing the testing but he thought he was in charge of the recruitment process. He said he did not know why someone would want to know they were "travellers".
3.3. The complainant gave an account of his participation in the 'indoor test' which involved two elements: a land based test involving, inter alia, basic life support and general aspects of safe lifeguarding; a pool based test involving different lifeguarding scenarios. He stated that he considered he had done well in the test. He also submitted that a representative of the respondent, who was not marking him, was very often next to him looking at his score sheet and examining how he was managing the exercises he was required to undertake. He stated that he did not think that this person was a member of Irish Water Safety (IWS), the organisation that had carried out the testing on the respondent's behalf.
3.4. The complainant said that when he and Mr A, who was also from Poland, were finished the 'indoor test', they asked someone where they needed to go for the 'outdoor test' which they had been told would take place the following day. He said that they were informed that the 'outdoor test' had been postponed until 17th May. He said that on 6th May, having returned to Poland, he wrote an e-mail to the respondent to "find out what was going on". He said that he was informed that it had to wait for the results from the 'indoor test' from Irish Water Safety (IWS), who had carried out the testing, before proceeding to allow him take the 'outdoor test'. He said that, on 15th May, he received an e-mail from the respondent stating that he was not successful at the 'indoor test'.
3.5. The complainant stated that there were people for whom this was their first application for lifeguard posts and these people were given higher marks than him. He stated that it was clear from the scoring sheet supplied to the Tribunal by the respondent that his score was changed from 25 to 24 when 25 is a pass. He submitted that this change was forged, particularly as the change to the mark was neither initialled nor signed. He said that the respondent's argument that it employs staff from a diverse range of nationalities "is not an argument".
3.6. Mr A, who was present at the hearing, stated that he received an e-mail from Ms B on 28thMay stating that he had passed the first test. He said that he was not offered the job but was asked to come to Ireland to participate in an examination on the beach. He stated that after completing this test, he would be given the job or not. He said that he did not intend to do so as he was not even sure he would then get the post and did not consider it was worth the time and effort to attend for in those circumstances. Mr A stated that he had also applied for the job because of the extra marks for First Aid. He accepted that he had not raised any concerns with the respondent about the process when he e-mailed it on 5th July following. However, he also questioned the qualifications of some of the other candidates to whom he had spoken, saying that some of them had told him it was their first job application.
3.7. In summary, the complainant stated that no Pole was employed. He said that the only two people that did not pass were Polish. He stated that his qualifications had been verified by IWS with respect to his post in Donegal, but had not been with respect to his post in Kerry. He stated that the change of his mark, the requirement to carry out an additional test and the non-award of First Aid marks were all acts of discrimination designed to prevent him from getting the post in question.
4. Summary of the Respondent's case
4.1. The respondent stated that the people whose qualifications could not be verified by IWS were required to carry out the 'outdoor test'. It stated that it was obliged to verify qualifications and it was IWS that carried out the verification. It stated that it was obliged to accept its recommendations and it understood that it was the level of the complainant's qualification that was disputed. It initially stated that IWS had a statutory function in that respect but later stated that neither it nor IWS had a statutory obligation to verify qualifications for Lifeguard posts.
4.2. The respondent also stated that it was irrelevant whether the complainant's qualification had been verified by IWS for his previous post in Donegal, as it had to carry out its own independent recruitment process, independent from that of any other local authority. It stated that Irish candidates would have already done the Open Water test as part of their qualifications and the qualifications of the other candidates had been verified by IWS.
4.3. The respondent stated that the potential for additional marks with respect to First Aid was that if two candidates had the same marks then the one with First Aid would be placed higher. It stated that the statement "hello, how are you travellers", had the purpose of identifying those who had travelled from abroad (including Irish nationals) in order to facilitate them in not being unnecessarily delayed. Therefore, it was not indicative of any particular attitude on its part and was not specifically directed at the three Polish candidates.
4.4. The respondent stated that the e-mail to the complainant about the 'outdoor test' only stated that it would possibly take place on 4th May and was not confirmed in that context. It stated that there was nothing sinister or discriminatory with respect to the change of date for the second test. It stated that the new date was only confirmed with them by IWS on the morning of the first test. It stated that the date was changed in order to facilitate the Open Water Test for the complainants at the same time as it was being done in the course of the IWS normal training programme, which was scheduled for 18th May. It stated that Mr A was not contacted afterwards because successful candidates were only contacted when their name came up on the panel and not before and so Mr A was contacted on 28th May when his place came up for calling off the panel.
4.5. The respondent stated that there were four markers (all from IWS), two in the pool and two on the "first aid" test (i.e. the land-based part of the 'indoor test'). It accepted that the mark for the complainant was altered from 25 to 24, and thus from a pass to a fail. However, it stated that it was altered by the marker, who was not an official of the respondent but of IWS and that the accompanying remarks were quite negative in any event. It also submitted that if there was some form of conspiracy or discrimination then the results sheet would not have been made available.
4.6. The respondent took serious exception to the suggestion from the complainant that it had forged the change in the mark or otherwise interfered with that mark. It stated that there were 54 candidates and accepted that only 2 failed, both of whom were Polish. However, it also pointed out that Mr A was of Polish origin and passed the test and so it could not have discriminated against Polish nationals. The respondent also stated that it had not asked applicants to identify their nationality as that would be discriminatory. It stated it had asked for addresses for correspondence and people had travelled from many different countries.
4.7. IWS wrote to the respondent on 8th May informing it of the results of the 'indoor test'. However, the respondent submitted that it did not receive this information until 13th May (there being an intervening weekend of 10th and 11th May). It submitted that these results were issued in writing to all candidates on 15th May, 2008. It also stated that it did not know the nationalities of the candidates, who came from several jurisdictions, as they were not required to provide such information. It submitted that it asked about their status as EEA citizens, but only in the context that it required confirmation that candidates are specifically allowed to work in the State under labour legislation. It submitted that this does not require a declaration or details of nationality.
4.8. In response to the references the complainant made to the difficulties associated with travel arrangements, the respondent stated that travelling to Kerry from Poland may, in certain circumstances at least, be more convenient than travelling there from other parts of Ireland, particularly from more remote locations.
4.9. In summary, the respondent accepted it was not clear about the marks with respect to First Aid but reiterated that they were only awarded in the case of a tie. It stated that Mr A was offered employment, though conditional, and pointed to his e-mail of July following which he did not raise any issues with respect to the recruitment process. It stated that Mr A was not a trainer and so was not qualified to assess other candidates. It stated that the plain fact is that the complainant attended for assessment, was assessed and was not deemed to fulfill the requirements of the role. It stated that it employed people from various nationalities and it did not discriminate against the complainant on the grounds of his nationality.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. Therefore, in deciding on this complaint, I must first consider whether the complainant has established the existence of a prima facie case. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds..." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." The issue for me to decide in this case, then, is whether the complainant was subjected to less favourable treatment in comparison to another person on the ground of race with respect to access to employment. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
The Applicable Law
5.3. In a number of recent decisions (followed by this Tribunal), the Labour Court has laid out the criteria for considering whether there has been discrimination in a competitive recruitment/promotion process. For example, in the recent case of UCD -v- Rath1, it did so comprehensively when it stated that "..it is well settled that for the purpose of establishing unlawful discrimination the ground relied upon...need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision..... The type or range of facts which may be relied upon by a complainant to shift the probative burden can vary significantly from case to case....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.."
5.4. It went on to say that "the Decision of the Northern Ireland Court of Appeal in Wallace -v- South Eastern Education and Library Board  NI38  IRLR 193 is authority for the proposition that where a well qualified woman is passed over for promotion in favour of a less qualified man, an inference of discrimination should be drawn. That general principle is equally applicable where other discriminatory grounds are relied upon...in applying that principle it is for the Complainant to prove as a fact that he or she was better qualified (or in this case equally qualified) relative to the successful candidates. Moreover, the qualifications or criteria which is to be expected of candidates, and the evaluation of candidates against that criteria, is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness".
5.5. It then said that "It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better or equally qualified against the chosen criteria that an inference of discrimination could arise.... Hence, in cases such as the present case, the focus of the Court's enquiry is to ensure that the selection process was properly conducted and that the result was supported by the material before the decision makers". It also said "Statistics can be relied upon to establish a prima facie case of discrimination...it is for the national court to assess whether it may take into account the statistics relied upon and whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant."
The Complainant's Case
5.6. With respect to the present case, there were two criteria for eligibility for the post in question. Firstly, candidates were required to "hold the Beach Lifeguard Award from the Irish Water Safety Association (or the equivalent of other lifesaving organisations)." Secondly, candidates were required to "have a thorough knowledge of resuscitation including Cardio Pulmonary Resuscitation". Leaving aside, for the moment, the issue of whether there was discrimination with respect to the failure to award such marks to the complainant, the advertisement for the post also stated that "Candidates holding Certificates of Competence in basic first aid will gain extra marks". It is clear that, while not a criterion for eligibility for the post, possession by a candidate of a qualification in First Aid was clearly considered to be of importance to the respondent in the selection of suitable candidates for that post.
5.7. The complainant's qualifications were called into question by the respondent only insofar as they related to those aspects of the post which were tested by the 'outdoor test'. It is not contested that he was qualified for those aspects of the qualification criteria which were tested in the initial 'indoor test' as he was allowed to complete that test. If discrimination occurred, then it must have occurred with respect to this part of the testing procedure as it was the result of that test that brought the complainant's participation in the recruitment process to an end. Therefore, it is this part of the competition procedure in question that must be the principal subject of my investigation. In that context, it is useful for me to provide the following background to the tests that were carried out.
5.8. There were two parts to the 'indoor test': the land based part of the test ('land test') for which 50 marks were awarded and the pool based part of the test ('pool test') for which 150 marks were awarded. There were four markers carrying out these tests: two markers to each test. Candidates had to gain a pass mark in both tests. The complainant was successful in the 'pool test" but was unsuccessful in the 'land test'. In that context, it is also useful to note that the 'land test' measured two criteria: i) Basic Life Support, Adult Basic Life Support, Aftercare and Basic Life Support Theory for which a total of 40 marks were awarded; ii) General Aspects of Safe Lifeguarding for which 10 marks were awarded. The total marks between these criteria determined whether a candidate failed or not. 25 was a pass mark in this respect.
5.9. As with Rath, it is not for me to make any determination upon the suitability or not of these criteria and the distribution of marks awarded to each criterion in that respect. What I must consider is whether the chosen criteria were applied inconsistently as between candidates or whether an unsuccessful candidate (i.e. the complainant) was clearly better or equally qualified against the chosen criteria. It is only if either of those scenarios is the case that an inference of discrimination can even arise. Even then, I must also consider whether the complainant's nationality was a factor, other than a trivial one, in the decision to fail him.
5.10. In that respect, I have carefully examined the application forms provided by the respondent in relation to all of the candidates for the post in question. It should be noted that there were, in fact, 39 candidates for the respondent's competition. 37 were successful, 2 were not. From an examination of the forms for the candidates, the following is clear:
- The complainant was at least as well qualified as all 37 of the successful candidates, and better qualified than most.
- The complainant was at least as experienced as all 37 of the successful candidates, and considerably more experienced than most.
- The complainant was the only person out of all 39 candidates who failed in the First Aid element of the course despite being at least as well qualified in that area of competence as anyone else and better qualified than most.
5.11. In short, the complainant was one of only two candidates who were unsuccessful in a field of 39, when almost all of the successful candidates were less qualified and less experienced than he, many of them considerably so. In that context, I am satisfied that the chosen criteria for the recruitment process in question were applied inconsistently, particularly with respect to the complainant.
5.12. In considering whether nationality was a factor in relation to this inconsistency, I also note the following:
- There were only three candidates who had not identified themselves as Irish citizens on their application form. All of these non-Irish candidates were Polish.
- Every one of the Irish candidates was given a higher mark than the complainant who, inter alia, had previously worked as a Senior Lifeguard on an Irish beach which, on its own, made him far more experienced than most of the Irish candidates. Indeed, there were many Irish candidates with no lifeguarding experience at all, including some who had only just qualified as lifeguards. However, all of these candidates finished ahead of the complainant in the competition in question.
- Only one of the Polish candidates passed whereas all of the Irish candidates passed. Putting it another way, out of the other 38 candidates the only other candidate who failed was also Polish (though see paragraph 5.13 below with respect to consideration of these figures from a statistical perspective).
- Despite being the only candidates required to do an additional test, the Polish candidates were not made aware of the change of date for the additional test until the day before it was scheduled to take place and, more particularly, after they had already made their travel arrangements, and indeed had already arrived in Ireland
- Furthermore, they were not notified of the change of date by the respondent until after they made their own inquiries about the matter. If, as alleged by the respondent, the date was only changed that morning, then I would also question why they were not notified as soon as they arrived at the testing centre.
- I also note that the outdoor test was changed to a date so much later than the indoor test which they had already taken part in that it was not feasible for them to remain in Ireland to await the second test.
- Mr A was not informed he was successful until after the rescheduled outdoor test had already taken place. He was then asked to travel to Ireland without a job offer based only on the possibility that he might be asked to remain there for the summer should he pass a further outdoor test which had already been scheduled twice without him being given the opportunity to do it. He declined to do so.
5.13. I am satisfied that, taken together, these facts are of sufficient significance to raise an inference of discrimination on the race ground by application of the accepted tests. Additionally, it is evident that the only candidates who failed the 'indoor test' were Polish. It is also evident that only 33% of Polish candidates passed whereas 100% of the other candidates passed. Because the pool of Polish candidates is small (3 persons), these statistics might not, on their own, be significant evidence of discrimination. However, taken along with the other facts outlined above, I am satisfied that these statistics are significant and assist the complainant in raising an inference of discrimination.
5.14. I appreciate that there are serious health and safety concerns with respect to ensuring a lifeguard is suitably qualified, given the responsibility attached to that role. However, in light of all the other circumstances of the present case, I would have to question why the Polish candidates were required to do another test when others were not. It may be that the respondent was obliged to accept the IWS view on the qualifications. However, I also note that the respondent was unable to point to any statutory or regulatory basis for the requirement for IWS to vet candidates in the first place.
5.15. Furthermore, the respondent stated that it was decided that the candidates should only do the 'outdoor test' after the results of the 'indoor test' were known. However, if that was the case, then why even set them for consecutive days in the first place? The respondent stated they were set on a provisional basis only, but the question remains valid even in that context.
5.16. In short, I am satisfied that the chosen criteria for the recruitment process in question were applied inconsistently and in such a way as to favour Irish candidates over Polish candidates. Furthermore, I note the separate process that was applied to the Polish candidates in terms of the additional obstacles they had to clear to even be offered the post. I am satisfied that this process also shows clear evidence of unfairness against those candidates vis-à-vis the other (i.e. Irish) candidates. Therefore, I am satisfied that there is evidence of sufficient significance to raise a presumption that the complainant's nationality was more than a trivial influence on the respondent's decision not to recruit him for the post in question. The complainant has established a prima facie case of discrimination on the race ground as a consequence.
5.17. I must now focus my attention on the arguments made by the respondent as to why the complainant was not appointed to the post and consider whether the explanations it has provided in that respect discharge the probative burden which it now bears. In the first instance, the respondent put forward that the testing was carried out by an independent organisation, IWS, over which it had no control. However, the Acts are clear in Section 15(2) in holding the respondent liable for the activities of IWS in this respect as they acted as the respondent's agent in carrying out the recruitment process in question. Furthermore, the testing process was held under the auspices of the respondent and was carried out by IWS with the respondent's authority.
5.18. The respondent also submitted that IWS was independent and unbiased and could not have discriminated against the complainant on that basis. In that context, the respondent submitted that all candidates, including the complainant, were assessed by IWS on their merits and based solely on how they performed in the 'indoor test'. It submitted, essentially, that the complainant failed solely because he performed poorly on the day in question. As proof of this, the respondent provided the testing sheets for all candidates which, it submitted, showed that they were all assessed against open and transparent criteria.
5.19. I would expect that someone of the complainant's particular qualifications and experience in the area concerned would meet the requirements of that position. That is not to say that he necessarily did so on the day in question. It is more than possible that the only reason why the complainant failed was because he had a bad day and performed poorly. However, the evidence does not support this contention. The complainant clearly stated in oral evidence that he did not perform poorly whereas the respondent did not provide any oral evidence to the contrary, relying on the marking sheets alone in that respect. I have examined the comments and marks given by the relevant markers as they appear on those sheets. They do not provide any significant evidence that the complainant performed so much worse than other candidates on the day that he failed when almost everyone else passed.
5.20. For example, it is quite clear that the complainant's mark had been a pass mark but was changed by one mark so that he did not pass. The respondent pointed to the comments made by the person who marked his test as being negative and consistent with the provision of a fail mark. However, I note that a number of Irish candidates received similar negative comments but were passed. While most of these comments were different in nature to those of the complainant, and/or were fewer in number, I am not satisfied that the differences were such that they provide a satisfactory explanation as to why he failed when they passed, particularly given the difference in qualifications and experience between them.
5.21. Based on all the evidence presented to the Tribunal in relation to this case, then, I am not satisfied that the respondent has shown that the decision to fail the complainant was based solely on his performance on the day in question. In particular, it has not provided an adequate non-discriminatory explanation as to why the complainant's mark was the only mark that was changed such that his performance in the test in question was altered from being a pass to being a fail. In that context, it has failed to discharge the burden of proof with respect to that particular aspect of the claim.
5.22. The respondent also submitted that it did not know the nationalities of the candidates so could not have discriminated against any of them on that basis. However, candidates were required to identify if they were EEA citizens and/or Irish citizens. While it was conceivably legitimate for the respondent to seek this information per se, even a cursory glance at it and the other information provided by the complainant and the other Polish candidates with respect to qualifications and experience would provide any reasonable person with the knowledge that they were of that nationality. The Irish candidates were readily identified as such. Therefore, I am satisfied that the respondent was aware of the nationality of all the candidates throughout the process.
5.23. The respondent also stated that this information was not supplied to the markers. However, I am satisfied that these markers knew that the complainant was not Irish. In particular in this respect, I note that the complainant's spoken English, while excellent, was accented. Additionally, his name is not one that would usually be associated with an Irish citizen. I am also satisfied, in all the circumstances of the present complaint, that the reference to travellers made by the respondent ensured that the markers, who were present at that time, were made aware that the complainant and Mr A were Polish.
5.24. The respondent also submitted that, because Mr A passed the first test, it could not have discriminated against Polish candidates. However, I do not consider that the fact that one Polish candidate was successful in one part of the competition can be considered in isolation from all the other circumstances of the complaint. I consider that it would be contrary to the purpose of the Acts if I were to find that because one Polish candidate was given a pass mark in one part of the test, then all the other evidence presented to the Tribunal in this case must be ignored. In particular in this respect, it is clear that the candidate concerned was not actually offered the post in question as he still had to pass a further test before being recruited by the respondent.
5.25. In any event, in Gillen -v- Department of Health2, the Labour Court found that the fact that one person of a particular age was promoted did not rebut an inference of discrimination with respect to a claim that persons of a similar age were discriminated against.
First Aid Qualifications Issue
5.26. I now turn to the complainant's claim that the respondent also discriminated against him in failing to award him extra marks for his First Aid qualifications. The key question in this context is what the intention of the respondent was when it first advertised the post. The respondent submits that it was always its intention to award the marks in question only in the event of a tie. The complainant, on the other hand, submitted that it was the initial intention of the respondent to award additional marks to candidates with suitable qualifications in First Aid in the calculation of overall marks in the 'indoor test'.
5.27. I have carefully examined the advertisement for the post in question, which simply states that "Candidates holding Certificates of Competence in basic first aid will gain extra marks" without any qualifying remarks in that respect. If it was the case that the respondent intended to award such marks only in the event of a tie, then the advertisement in question was seriously misleading. In those circumstances, I find I must accept the complainant's submission in this respect.
5.28. In light of all the circumstances of the present case, then, I find I must also agree with the complainant's submission insofar as he suggests that the fact that all three Polish candidates had First Aid qualifications was more than a trivial influence in the respondent's decision to change its mind on how it applied the additional First Aid marks. The complainant has established a prima facie case of discrimination in that respect also. No rebuttal was offered by the respondent on this point other than to submit that it only intended awarding marks in the event of a tie. As I prefer the complainant's submissions in this respect, that rebuttal has been unsuccessful.
5.29. In short, then, the complainant has established a prima facie case of discrimination which the respondent has failed to rebut. I am conscious that where awards for a breach of the principal of equal treatment are to be made, they must be effective, proportionate and dissuasive. In making my award in this case, then, I have been guided by the application of these principals to all the circumstances of the present case, particularly with respect to the dissuasive element of the award.
5.30. Finally, I refer to paragraph 6.4 below. While I am making no order in this respect, I would suggest that the review outlined therein be carried out in consultation with an appropriate person or organisation expert in the provisions of the Employment Equality Acts and related matters.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the respondent discriminated against the complainant on the race ground with respect to access to employment, pursuant to section 6(2)(h) of the Acts and contrary to Section 8(1)(a) of the Acts.
6.3. In accordance with Section 82 of the Acts, I order that the respondent pay to the complainant the sum of €7,500 in respect of the discrimination. This award is made to compensate the complainant for the distress caused to him as a result of the discrimination by the respondent. In that context, it is not in the nature of pay and is, therefore, not subject to tax.
6.4. In accordance with Section 82(1)(e) of the Acts, I also make the following order: That the respondent ensure that all those involved in recruitment for it, including those for whose actions it can be held vicariously liable, are made familiar with their obligations under relevant Equality legislation. In particular in this respect, I order that the respondent carries out a review of recruitment processes undertaken by it or on its behalf to ensure that they provide appropriate procedures and mechanisms for the prevention of unlawful discrimination in the context of the Employment Equality Acts. Furthermore, this review must be undertaken no later than 90 days after the date of this decision and must be completed within a reasonable timeframe, but certainly not later than eighteen months after the date of this decision.
4th September, 2012
1 Determination No.: EDA119, 8th April, 2011
2 Labour Court, EDA 0412, 27th July, 2004