Complainant

Respondent

Parties

Abul Kashem Golam  Shahriar

CBM Ireland

Representatives

  self

Masterson Sammon & Co /Dan O’Mahony BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00066943-001

24/10/2024

The Complainant alleges that he was discriminated on the ground of race as a reference from his more recent employer in Ireland was given a disproportionate weight when compared to his references from Bangladesh. The more recent reference was also less relevant as it did not relate to accounts work unlike the references he provided from Bangladesh.

The Respondent is a registered charity working in the area of international development relating to disability rights. As an international agency it employs personnel who have different ethnic backgrounds and that includes Bangladeshi nationals.

The Respondent stated that they made their decision not to offer the job as they were not happy with the references received. The most recent reference had assessed the candidate as fair under several headings. The Complainant had been rated highly at interview and the offer was made subject to references. If the Respondent had been racist, it would never have rated the candidate highly or offered him the role subject to satisfactory references. There is no link to the ground of race. The decision was made based on a reference check. The fact that the most recent reference was from Ireland because the Complainant was working in Ireland can’t logically link the withdrawal of the job offer to race.

The Complainant alleges he was denied confirmation by CBM Ireland based on the reference provided by his previous employer from Ireland which was taken into consideration without additional investigation of the authenticity, or the truthfulness of the claims made on the specific reference document. The offer that was made which he accepted with the condition of presenting at least two references was revoked soon after confirming receipt of the Irish reference document. Soon after receiving the offer letter communication, the Complainant also asked the manager responsible for inclusion at CBM Ireland to permit him to submit two references from Bangladesh due to the reason that the jobs he held back there are more aligned to the job description of the offered position which were also sent from his previous employers. But a request of providing at least one reference from Ireland was upheld and as requested he complied with the request as well.

The Respondent made a conditional offer based on satisfactory references. He was asked for a reference from his most recent employer not Irish an employer. He was highly rated at interview and the only reason his position was not affirmed arose because the references provided were not deemed strong enough. There is no evidence of any discrimination on the ground of race and an Irish candidate would also have been treated the same if their most recent reference was not strong enough.

FACTS:

The facts of this case are not in dispute about the references supplied.

The Complainant applied for an office role, was rated highly and was offered the role subject to satisfactory references. As the references were not satisfactory, he received the following explanation from the hiring manager:

Thank you for speaking with me on the phone yesterday (22nd). My apologies again for the delay in reverting to you. It was an unfortunate series of absences here… As discussed, the offer for the role of Finance Officer with CBM Ireland was a conditional offer subject to satisfactory references. Unfortunately, as discussed, the references were not strong enough for us to move forward with the offer.

The Complainant argues that the link based on his race is made because this reference related to his work in Ireland and was given more weight than the good references from Bangladesh.

The question arises if an Irish person received this reference would it give grounds to a reasonable employer not to proceed with the offer where two other references that were good related to work in the UK?

Prima Facie:

The Prima Facie testis not an onerous test. It requires some facts that tend to show the possibility of discrimination. It is not a probative burden.

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence 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.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a Claimant establishes a prima facie case of discrimination the onus shifts to the Respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

The facts show the respondent rated the Complainant highly. Offered him the job subject to references knowing his race and withdrew the offer only because of a reference that was nominated by the Complainant that was not strong enough. The Complainant has failed to make out a prima facie case of discrimination.

Comparator/Hypothetical Comparator:

In Regan Employment Law 2nd Ed chapter 17, I note the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required

I note the case of Toker Developments Limited and Edgars Grods (Determination No EDA105) on the issue of a hypothetical comparator the Labour Court stated: “It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced and it would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation.”

In this case that requirement has not been met. The Complainant has not met the test that an Irish person would have been treated more favourably; it is more likely that an Irish applicant would also had the conditional job offer withdrawn.

As the Complainant has not made out a Prima Facie case, I must find that he was not discriminated against on the ground of race and dismiss his complaint. His Complaint is not well founded.

 The Complainant has not met the prima facie test that an Irish person would have been treated more favourably; it is more likely that an Irish applicant would also had the conditional job offer withdrawn.

As the Complainant has not made out a Prima Facie case, I must find that he was not discriminated against on the ground of race and dismiss his complaint. His complaint is not well founded.

No Prima Facie Test.