ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023393
A Job Applicant
Eversheds Sutherland solicitors. Owen Keany BL
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: 02/12/2019
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral 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. Certain sensitivities arose in evidence in this case and after hearing submissions from both parties on the issue of anonymity, I have used my discretion to anonymise the parties. The Complainant submitted an unsolicited written submission some days after the hearing, which is not being considered in this decision.
The Complainant claimed that he was indirectly discriminated against on the grounds of race and directly discriminated against on the grounds of age when he applied for three positions in the Respondent company. The Respondent denies the claim on the grounds that the Complainant has not established a prima facie case of discrimination and should be dismissed on this basis alone. The Respondent also rejects any allegation of indirect or direct discrimination on the grounds of race or age.
Summary of Complainant’s Case:
The Complainant is a Swedish citizen of Syrian heritage with residence in Ireland. He has extensive international experience in Information Technology (IT) sales focussing on the Middle East area and has managed to build his life and career after the war in Syria. He was unsuccessful following applications for three telesales jobs with the Respondent. His claim is that he was indirectly discriminated against because of being of Syrian origin and directly discriminated against, because of his age.
The Complainant alleges that the Respondent choses Egyptian workers for Arabic speaking roles, over other those of other Middle Eastern and North African origins. He submits that when choosing people for these roles, the Respondent prefers those with previous experience with the Respondent in the Middle East and he maintains that this constitutes indirect discrimination on the grounds of race because the Respondent’s base in that part of the world is in Cairo, and invariably those who are non-Egyptian are at a particular disadvantage compared to Egyptians.
The Complainant submits that the Respondent’s hiring manager made a point that the Complainant did not have previous selling experience. The Complainant therefore asserts that this was a very restrictive barrier for him to overcome because it is only Egyptians who can realistically have this specific selling experience
The Complainant states that it is the talk of all the Arabic community in Ireland that the Respondent only hires Egyptians with previous association to the Respondent and this raises an inference of indirect indiscrimination. He claims that a Somali friend of his told him that the director for the team had told them that previous experience with the Respondent was a condition of employment. He also claims that on a trip to Qatar he was told that all the Egyptian sales executives had relocated to Ireland with the Respondent. He claims therefore that the roles were pre-decided and that his application and call for interview was basically going through the motions.
The Complainant requested that it be noted that Arabic is spoken in around 26 countries in different dialects and that the mainstream dialect of the Gulf and Levant regions, which might have been required by the Respondent, is spoken by no less than 150 million people from at least 16 countries and thus there is no logic in excluding non-Egyptians.
The Complainant submitted no evidence in pursuance of direct discrimination on age grounds when requested.
Summary of Respondent’s Case:
The Respondent submits that the Complainant has not established a prima facie case of discrimination and that the complaint should be dismissed on this basis. Without prejudice to this position, the Respondent denies any allegation of discrimination and asserts that the recruitment procedures in this case show that any allegation of discrimination can be easily rebutted.
On the issue of a prima facie case, the Respondent submitted numerous authorities which show that the first requirement for a Complainant in an equality case is that the Complainant must first establish facts from which discrimination may be inferred. The Respondent submits that it is only when a Complainant has discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Complainant in this case relies on rumour and speculation derived from alleged conversations with ‘friends and connections’ and puts forward no concrete facts or material evidence to raise a presumption of discrimination. The Respondent submits that the Complainant’s complaint is based entirely on an incorrect belief that the Respondent has pursued a policy of hiring only Egyptian nationals for Arabic roles within its digital sales division.
The Respondent submits that it does not request information relating to the nationality of any candidate applying for a role within the organisation. The Respondent currently has approximately 707 employees in its digital sales department in Ireland. Of those who have volunteered their nationality, the Respondent understands there to be approximately 27 Egyptians.
Insofar as it had been suggested by the Complainant that the Respondent submits it has implemented a policy of employing only candidates with previous experience in dealing with and selling the Respondent’s products, the Respondent submits this is patently not the case and is contrary to the evidence provided to the Complainant regarding the shortlisted and successful candidates in respect of the three roles he applied for. Arising from the Complainant’s complaint, the Respondent states that it has carried out a review of the work experience listed in the CVs of each of those candidates shortlisted for telephone interview. The Respondent submits, that based on that exercise, only one of the sixteen candidates had previous experience of working with the Respondent.
The Respondent submits that whilst no such policy exists, the Respondent is perfectly entitled to view positively and attach the appropriate weight to a candidate’s ‘s level of qualification and experience, including his/her experience of working with or selling the Respondent’s products. The Respondent argues that this is in fact illustrative of the fairness and objectivity of the recruitment process.
On the grounds of age, the Respondent wishes the Adjudicator to note that the Complainant has failed to provide any evidence of discrimination, however, the statistical data shows that the average age of employees with the Respondent is 37. It appears from the Complainant’s CV that at the time of each of the three applications forming the subject of these claims, he was 35 years of age therefore his claim is without foundation.
Findings and Conclusions:
Indirect discrimination comes under section 22 of the Employment Equality Acts 1998 to 2012 (the Act) where it states that;
(1)(a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B) unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
(c) In any proceedings statistics are admissible for the purpose of determining whether subsection (1) applies in relation to A or B.]
(2) Subsection (1) shall apply to the provision of any such services as are referred to in paragraphs (a) and (b) of section 11(1) subject to the following modifications:
(a) for the words “any of the matters specified in paragraphs (a) to (e) of section 8(1)” there shall be substituted the words “a person seeking any such services or guidance as are referred to in paragraphs (a) and (b) section 11(1)”;
(b) the reference to the employer shall be construed as a reference to the employment agency; and
(c) the reference to section 8 shall be construed as a reference to section 11.
(3) Subsection (1) shall apply to participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1) subject to the following modifications:
(a) the reference to paragraphs (a) to (e) of section 8(1) shall be construed as a reference to paragraphs (a) to (c) of section 12(1);
(b) the reference to the employer shall be construed as a reference to the person offering the course or facility; and
(c) the reference to section 8 shall be construed as a reference to section 12.
(5) Subsection (3) of section 8 applies for the purposes of subsection (1) as it applies for the purposes of subsections (4) to (8) of that section.
The above section relates to indirect discrimination on gender grounds. Section 31 of the Act applies section 22 to indirect discrimination on the other protected grounds.
To come within the definition of indirect discrimination, it must be shown that a provision, criterion or practice of a Respondent places members of a group having a protected characteristic at a particular disadvantage. The Complainant must show that he is a member of the group and that he is disadvantaged by the provision, criterion or practice.
The original burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85(a) of the Act states as follows:
(1) 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.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
(3) Where, in any proceedings arising from a reference of a matter by the [Commission] to the [Director General] under section 85(1), facts are established by or on behalf of the [Commission] from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
(4) In this section “discrimination” includes—
(a) indirect discrimination,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
In Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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.”
The Complainant gave evidence of the fact that he was of Syrian extraction. However, he presented no evidence, documentary or otherwise, that the Respondent discriminated against non-Egyptians in an indirect way through a policy of hiring people with previous experience of working with the Respondent. The Complainant relies on hearsay, speculation and conjecture. He submits for example that “it is the talk of all the Arab community in Ireland.”. He speaks of what a Somali friend has told him and another occurrence of what he had heard on a business trip to Qatar. I am minded of the Labour Court’s determination in Arturs Val Peters. on the quality of the facts required: “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.”
I conclude that the Complainant did not satisfactorily present facts from which it can be presumed that equal treatment did not apply to him in the job selection process. He did not establish a prima facie case as required by the Act and therefore his complaint fails.
On the issue of age discrimination, the Complainant submitted no evidence to the hearing in pursuance of this part of his complaint. Therefore, this also fails on the basis that he did not establish facts from which age discrimination can be inferred.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the Complaint is not well founded and therefore fails.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Employment Equality, Indirect Discrimination, Age