Employment Equality Acts
Adjudication Officer/Equality Officer’s
Decision No: DEC-E2018-011
Rafat Mustafa Salah El Din
(Represented by Bebhinn Murphy BL, instructed by Robinson O’ Neill Solicitors)
File No: et-156222-ee-15
Date of issue:28 March, 2018
Employment Equality Acts - discriminatory treatment - age - race - access to employment - prima facie case
Dispute and delegation
1.1 This dispute concerns a claim by the complainant that he was subjected to discrimination in relation to access to employment by the respondent on the grounds of age and race in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal/Workplace Relations Commission on 13 May 2015 under the Employment Equality Acts. On 11 September, 2017 in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 22 November 2017. Final documentation was received on 20 February 2018.
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.
Summary of the Complainant’s submission
2.1 The complainant is in his late fifties and his country of origin is Egypt. He is an Irish citizen. The complainant was employed by the respondent from June – October 2011 as a baggage handler/ramp agent at Dublin Airport. The complainant submits that he has worked in various manual roles including that of baggage handler on an intermittent basis at the Airport for circa 9 years. He states that all applications for such positions must be made through the respondent company. The complainant asserts that he is having difficulty gaining further employment and that he has been discriminated against on grounds of age and race by the respondent resulting in his inability to gain employment. The complainant states that as a result, he has been out of work for three years. The complainant alleges that at an interview which took place on 20 January 2015, he was explicitly told that he was old and therefore not suitable for the position of ramp agent/baggage handler. The complainant submits that at the interview, an officer of the respondent stated that a complaint had been received in respect of a client’s previous employment whereby it was stated that the complainant was “too slow” at the work he was asked to do. The complainant submits that this is in complete variance with a reference which the complainant received from the respondent dated 6 October 2011 which stated that “if given the opportunity, we would re-employ Mr. M, he was reliable, punctual and an excellent team player”. The complainant was subsequently informed on 27 January 2015 that he had been unsuccessful for this position. The complainant asserts that no document has ever been produced to him showing that he was physically unfit for such work, therefore the assertion “you’re too slow” which was made in the interview by the respondent could only have been an unfair reference to the complainant’s age.
2.3 The complainant submits that he is being discriminated against on the basis of his age and nationality. The complainant is Egyptian and has lived in Ireland for 14 years and holds an Irish passport as a naturalised Irish citizen. The complainant alleges that a number of issues have been raised by the respondent in relation to his Egyptian ethnicity, in that, the respondent had advised and stated that the complainant required clearance from the Egyptian embassy in order to carry out employment at Dublin Airport, which he did not have at that juncture. The complainant states that it is irrelevant to his security status that he was once an Egyptian citizen. He states that as a naturalised Irish citizen, he has been the subject of a thorough background check during the naturalisation process and having completed same, he must now be afforded the same rights as any other Irish citizen. It is the complainant’s contention that other recruits were being offered temporary ID cards at the time in late January 2015. The complainant states that this issue was raised in an e-mail with the respondent on 21 January 2015 but there was no response to his query from the respondent. In addition, the complainant submits that when (i) he requested reasons from the respondent as to why he was being refused a job, (ii) asked why there was a refusal to put him forward for a job or refused an interview for a job, he received conflicting e-mails from the respondent stating that no recruitment was being carried out at a time (sometimes within hours) when concurrently the respondent was posting advertisements on its own website regarding the type of work he was applying for (for example ramp agent advertisement of 21 January 2015).
2.4 The complainant submits that it is clear from the e-mail correspondence that the respondent did not at any time respond to requests for information regarding the complaint allegedly received from Company X about the complainant’s work. He states that there were repeated requests for same but all went unanswered. The complainant contends that it therefore not credible that such a complaint existed at the time. In addition, the complainant outlines that the alleged complaint flies in the face of the glowing references provided regarding the complainant’s diligence and work ethic in his previous roles.
2.5 The complainant states accepting the respondent’s oral evidence that worker quotas had changed and secondly that the respondent had an obligation to match the person to the job if there were concerns about civil litigation specifically personal injuries claims; any valid concern regarding the complainant’s fitness to work was entirely within the respondent’s power to address by having him medically assessed or at least allowing him to provide medical evidence at his own cost regarding his fitness to work. The complainant asserts that no document has ever been produced to him showing that he was physically unfit for such work, therefore the assertion “you’re too slow” which was made in the interview by the respondent could only have been an unfair reference to the complainant’s age. The complainant submits that he was deprived of any opportunity to assert his fitness to work.
Summary of the Respondent’s submission
3.1 The respondent refutes the allegations of discriminatory treatment. The respondent states that with regard to the complainant’s statement that he was told he was too old to be employed by the respondent, that this is a complete fabrication of what actually happened. The respondent submits that the complainant was asked if he had valid airport ID to start immediately and he said he did. The respondent states that it offered him the role based on the fact that he was available for airside duties. The respondent states that on 20 January, following his interview, the respondent contacted Dublin Airport Authority by e-mail to check if he had available ID. Mr. F of DAA responded by e-mail on 20 January 2015 and confirmed that the complainant was not in possession of Airport ID and would have to be fully vetted which can take 6-12 weeks. The respondent subsequently e-mailed the complainant to say that she could not start him on Monday of the following week as he did not possess ID. The respondent also copied the DAA e-mail to the complainant clearly stating the reason he was not selected to work in January 2015.
3.2 The respondent submits that in the complainant’s submission, his statement claims “in or around 20 January 2015, the complainant was told he was too old and therefore not suitable for the role as ramp agent”. This is in direct contrast to the e-mail correspondence between the respondent and the DAA on the same date where the respondent was making every effort to return the complainant to the Airport and the complainant was in receipt of the DAA e-mail on 20 January 2015 clearly stating why he could not be employed. The respondent submits that in March 2015, it arranged an interview with Company Y directly. The respondent asserts that Company Y did not select the complainant and it e-mailed him to say that he was not successful and the client’s decision was final. The respondent refutes in the strongest of terms the allegations of discrimination. It states that it has provided recruitment to individuals across all races, religions and age groups and has provided details of other employees contracted to work at the material time who are of similar age to the complainant.
Conclusions of Equality Officer
4.1I have considered all the evidence both written and oral presented to me. 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 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. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. 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.”
4.2 Having adduced all the evidence in the instant case, I find that there is a conflict of evidence, in that, while the complainant was provided with a glowing reference in relation to his previous employment, there was an assertion from the respondent that a client of the respondent had stated that the complainant “was too slow” and this was a reason advanced for him not gaining employment, however, the respondent provided no documentation or evidence from the client in question to substantiate this assertion. I note from the correspondence submitted that prior to the initiation of the complaint to the WRC, the complainant had requested the respondent, on a number of occasions, to provide information and clarification regarding the alleged complaint received from the respondent’s client regarding the complainant, however no information was forthcoming. In addition, the respondent in another instance stated that as the complainant did not have valid ID and would need to get security clearance from the Egyptian embassy (which could take up to 12 weeks) she was not in a position to get work for him. There is a conflict of evidence on this point, in that, the complainant stated that he had worked in various manual roles at Dublin Airport for circa 9 years and has lived in Ireland for over 14 years and holds an Irish passport and all that that was required was a standard re-issue of security ID. The complainant disputes the assertion by the respondent that he would have to be vetted for security clearance which could take up to 12 weeks. While the complainant makes a valid argument here, overall, based on the totality of the evidence, I find that the complainant has not established a prima facie case of discrimination on the race ground as he has not presented evidence of sufficient significance to ground such a claim.
4.3 Having carefully examined the totality of the evidence in relation to alleged discrimination in relation to access to employment on the age ground, I find that the complainant has established a prima facie case of discriminatory treatment. In this regard, it was confirmed to me at hearing by the respondent that a client had made reference to the complainant “being too slow”. Given that there was no evidence presented to substantiate these purported comments, I find that the complainant has demonstrated evidence of sufficient significance to raise a prima facie case of discrimination on grounds of his age. In addition, I do not accept the respondent’s contention that the complainant required clearance from the Egyptian embassy in order to get security clearance given that he was a naturalised Irish citizen. I do not find this defence credible and in my view this reason given was also a measure by the respondent to exclude the complainant on the grounds of his age. Consequently, I am satisfied that the complainant has demonstrated a nexus in relation to his treatment by the respondent and his age and this case has not been rebutted by the respondent.
Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts.
5.2 I find that
- (i) the complainant has not established a prima facie case of discriminatory treatment by the respondent in relation to access to employment on grounds of race
- (ii) the complainant has established a prima facie case of discriminatory treatment by the respondent in relation to access to employment on grounds of age
In accordance with my powers under section 82 of the Acts, I hereby order that the respondent pay the complainant €7,500 by way of compensation for the breaches of the Employment Equality Acts. The award is redress for the infringement of the complainant’s statutory rights and therefore, not subject to the PAYE/PRSI code.
Equality Officer/Adjudication Officer
28 March, 2018
 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.