EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-050
A Job Applicant.
(Represented by IBEC)
File reference: ET-157382-ee-15
Date of issue: 15 June 2017
HEADNOTES: Employment Equality Acts, – Age – Access to employment.
This dispute concerns a claim by A Job Applicant (hereinafter referred to as “the complainant”) that he was discriminated against by An Employer (hereinafter referred to as “the respondent”) on the grounds of age and race (the complainant withdrew the ground of marital status at the hearing) contrary to section 6(2) of the Employment Equality Acts (hereinafter referred to as “the Acts”) in terms of access to employment in accordance with section 8 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on the 1st July 2015 under the Acts. On 24th April 2017, in accordance with her powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. I proceeded to hearing on 1st June 2017. The respondent and complainant made a written submission in advance of the hearing. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
2.SUMMARY OF COMPLAINANT'S SUBMISSION
2.1.The complainant saw a job with the respondent advertised through a web site. He sent in his CV but was not called for interview. A number of months later the he applied for the same job and was again unsuccessful.
2.2 The complainant applied for a different position with the respondent and was again unsuccessful. The complainant asserts that the reason he is not successful must be for discriminatory reasons. He asserts that he does not know what the discriminatory reason is as the respondent has all the relevant information.
3.1 The respondent acknowledges that the complainant made two unsuccessful applications for employment in February and September 2014 for the position of Inside Sales Executive
3.2 The respondent submits that his application was viewed fairly and impartially on both occasions. His first application was unsuccessful. Having reviewed the CV the claimant submitted, the decision was made not to progress his application due to other candidates having outlined more experience/education in Business Development.
3.3 The Respondent submits the complainant was progressed to the phone screening round with his second application after he amended his CV to include relevant experience that had not been included in his first application. Based on the screening, the application did not warrant progressing as it was not as strong as other applicants who had also been telephone screened.
3.4 The respondent engaged with the claimant on occasions, offering him extensive feedback and providing him with the details of their recruitment process.
3.5 At the hearing of this complaint the respondent submitted that in relation to the third alleged job application, that the respondent CV was not considered as he had already failed in relation to his application for a more junior position.
3.6 The respondent submits that in the complainant’s statement he outlined various reasons about why he believed he was discriminated against by UPS Ireland including age, his status as unemployed, his CV and his education. The complainant has requested data in relation to the employees who were hired by the respondent so that he can prove that he was discriminated against. Furthermore he asserts that the respondent’s recruitment process and procedure is discriminatory though insufficient arguments have been advanced as to how this is the case and as such we cannot respond to the allegations.
3.7 The respondent has already engaged with the claimant on numerous occasions offering him feedback as to why he was not selected for the role. They have outlined to the claimant the steps in their recruitment process. In the EE3 form, the Respondent asserted that it did not discriminate against the Complainant on the grounds of age or on any of the grounds as set out in the Employment Equality Act, 1998. Furthermore the Respondent asserted that the Complainant’s claim is based on a fundamental misunderstanding of the Act.
4. FINDINGS & CONCLUSION
4.1 I have to decide if the complainant was discriminated against in relation to access to employment on the age ground and one the ground of race. In reaching my decision I have taken into account all of the submissions, oral and written, made in the course of my investigation as well as evidence presented at the hearing. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.2 In Melbury Developments v Arturs Valpetters (EDA 0917) the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd (EDA103) that one of the facts which a complainant must establish is that there was a difference in treatment between him/his and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar  2 All ER 953)
4.3 At the hearing of the complaint, the complainant submitted that he had only formed the view that there may be age bias following his failure the second time for the same job. The complainant gave evidence that he had begun to speculate that there may discrimination as he was so qualified that it could be the only explanation for his failure. Prior to the hearing, when asked by the WRC to clarify in writing the grounds for his complaint, he responded “The main grounds of discrimination are age discrimination and or possible Race and or Marital Status.” The complainant has presented no evidence other than an estimation of his own ability relative to other successful candidates about whom he knows nothing. At the hearing the complainant agreed that he was simply speculating that there might be discrimination. I cannot elevate such speculation to a factual basis upon which an inference of discrimination can be drawn.
4.4 Two HR managers for the respondent attended the hearing and gave specific details of the process used for the complaints job applications in 2014. I accept their account of that process. The complainant was one of 80 candidates who were not short listed for phone screening. I found them to be credible and reliable witnesses who gave a good account of a much standardised process the shortlisting of candidates for a junior position in their organisation. I accept the respondent’s assertion that the complainant was not short listed based on entirely on failure to demonstrate required experience relative to 15 candidates who were successful, and I find no evidence that the selection process was tainted by unlawful discrimination relating to the age ground. It is agreed by the complainant that the HR managers assisted the complainant in improving his application for his second attempt at the sales position.
Having regard to the foregoing consideration by the Labour Court and having considered all evidence, I am not satisfied that the complainant has established facts from which if can be shown that he was treated in a less favourable manner than others on the ground of age or race.
DECISION OF THE EQUALITY OFFICER.
5.1 In accordance with section 79 of the Employment Equality Acts and section 41(5) (a) (iii) of the Workplace Relations Act 2015, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subject to discriminatory treatment on the age ground or on the ground of race.
15 June 2017