ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001167
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 23/03/2016
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
The complainant referred a complaint to the Director of the Workplace Relations Commission on 16 December 2015 alleging that he was discriminated against by the respondent in respect of his family status in relation to access to employment, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2015 and contrary to section 8 of those Acts. In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998-2015, following the delegation of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
The complainant submits that he received a telephone call from the respondent on 30 November 2015 asking if he was interested in a position he had previously applied for about a year earlier as a driver with the company. During this telephone conversation, the respondent stated that there was an employee retiring at the end of the year in the midlands area and invited the complainant to attend for interview for this position. The complainant states that he attended for interview and there were two representatives from the company on the interview board, a male and a female. The complainant states that during the course of the interview, the female board member asked him how many children he had to which he replied, he had four kids. The complainant believes that this question was discriminatory in nature on the family status ground. The complainant submits that when the interview ended, the board member stated that the successful candidate would be contacted by the following Friday, 11 December 2015.
The complainant states that as he had not heard back from the respondent by 11 December, he decided to give them a call. During that telephone conversation, he was told that the company had decided to hold a second round of interviews and that the complainant did not make the shortlist. The complainant was informed that it was nothing to do with the interview just that there were more experienced candidates. The complainant submits that he was subsequently shocked to see the very same position advertised on a recruitment website on Monday 14 December 2015. The complainant immediately contacted the respondent by e-mail seeking clarification as to whether or not it was the same position he had done the interview for and the respondent representative replied by e-mail stating it was the same position and the company did not select any candidate from the panel of interviews they had undertaken so the advertisement was run again. The complainant states that given the sequence of events and the fact he met the criteria for the position, he can see no other reason for not getting the position other than that he was discriminated against on the grounds of family status.
Respondent’s Submission and Presentation:
The respondent states that it is a leading supplier of healthcare waste and compliance services. The company operates two EPA licensed processing facilities in Ireland, one of which is a hazardous waste transfer station and holds multi-regional waste collection permits. The company employs twenty drivers to collect and transport the waste material to these collection points. The respondent states that in late 2015, a vacancy for a driver arose in the midlands as a driver from Athlone was due to retire at the end of December, 2015. The company’s Service Co-ordinator, Mr. K reviewed a number of CV’s held on file and contacted the complainant and asked if he wished to attend for interview. The complainant was interviewed by Mr. K and Ms. C on 7 December 2015. Another candidate was interviewed for a different position on the same day. The respondent states that it uses a structured competency based interview format. Following a review of the forms and notes of the answers given by the complainant, the respondent notes that the only mention of family arises in response to the question “Can you tell me what inspires you ? ” and in response to said question the complainant stated that his family inspire him. The respondent refutes the allegation that a member of the interview board asked the complainant how many children he had. In addition, the respondent contends that the complainant’s experience was in passenger driving and he had little or no experience in making deliveries and collections in a truck or van. It also submits that his answers to a number of questions were vague particularly with regard to the tachograph and that in some instances he was unable to give an example when requested to do so by the interview board.
The respondent submits that at this time, the company’s Service Manager, Mr. W was conducting a review of transport operations and route planning with a view to maximising collections per vehicle per day. Based on these criteria, it became clear that a driver in the Donegal/Leitrim area, not Athlone would be best placed to meet the company’s needs and a driver already in situ within the company was chosen in this regard. The respondent states that the complainant contacted Mr. K on 11 December 2015 and Mr. K advised him that his application was unsuccessful. The respondent contends that it informed the complainant that the needs of the company had changed. It also advised him that the new advertisement which was placed on a recruitment website on 14 December was in fact for a driver based in the Longford area. The respondent refutes the allegation of discrimination against the complainant on grounds of family status and states that there is no basis to his allegation.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Issues for Decision:
The issue for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of family status, in terms of section 6(2)(c) of the Employment Equality Acts and contrary to section 8 of those Acts, in relation to access to employment as a driver with the respondent company. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
Section 85A of the Employment Equality 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. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule".
Section 6(1) of the Employment Equality 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 specified in subsection (2)…..” Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not". For a complaint of discrimination under the Employment Equality Acts to be made out, the complainant must demonstrate a nexus between the alleged discriminatory treatment and his family status. Having carefully examined all the evidence on this matter and taken testimony from the complainant and members of the interview board, on balance, I find the testimony of the representatives of the respondent more convincing and cogent. I note that the respondent has a structured competency based interview format and in accordance with good HR practice, detailed notes were taken during the interview process. Having reviewed the complainant’s CV, the notes taken and the structured competency based questions, it is apparent that the complainant was vague in a number of his answers when asked for a specific example on a few occasions, he was unable to provide same. I note that one of the questions to the complainant during the interview process was “What inspires you ?”. While there is conflicting accounts in relation to what transpired during this part of the interview; I find the testimony of the interview board more compelling. In that regard, I find that in answering this question, the complainant spoke at length about his family and his children. Having examined the evidence, on balance, I find that the complainant brought up the issue of family in response to a question. I am satisfied that the complainant’s family status was not the reason for his unsuccessful candidature for the position of driver with the respondent company. I consider that the complainant has failed to provide evidence of a prima facie case of discrimination on the family status ground. I accept that the interview board in question are very experienced in the area of interviewing skills and have interviewed for numerous positions within the company. I also note that the employer has a clear and well defined Equality and Diversity policy within the company which is highlighted in their Employee Handbook which is comprehensive in detail. Having carefully considered all the evidence, I am satisfied that the complainant was not discriminated against on grounds of family status in relation to access to the position of driver with the respondent company.
Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2015. I find that:
(i) the complainant has not established a prima facie case of discrimination on the family status ground pursuant to section 6(2) of the Acts and contrary to section 8 of those Acts in relation to access to employment as a driver with the respondent company.
Therefore, the complainant’s case fails.
Dated: 3 August 2016