Complainant

Respondent

Parties

Iuliia Galas

Public Appointments Service Publicjobs

Representatives

Killian Flood B.L. instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067286-001

10/11/2024

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

CA-00067286-002

10/11/2024

The complainant alleges that she was treated in a discriminatory manner in the course of job interviews conducted by the respondent. She is a Ukrainian national and complains that she was discriminated against on the basis of her race/nationality. This arose from an application and interview for the position of Executive Officer in the Civil Service.  

Specifically, she says that she was restricted in the examples she could offer in respect of her previous experience. her examples and that, during the second interview, she was sarcastically asked whether she was the “big boss” in her previous roles.

As a preliminary objection, the respondent submits that the complaint is not made under the correct legislation as it relates to a job interview  and is therefore within the ambit of employment which means that the complaint should be made under the Employment Equality Acts, and not  the Equal Status Act. That latter statute which requires discrimination to occur in the provision of goods or services.

The respondent did not provide a “service” which is capable of attracting protection under the Equal Status Act.

She alleges that her failing marks were not properly explained despite informal and formal reviews of both interviews. The complainant takes issue with receiving different scores in different competencies from the two interview boards and therefore is aggrieved that she failed the second interview on competencies that she passed in the first interview and vice-versa.

In addition to this. neither does the complaint  establish facts from which it may be presumed that prohibited and/or discriminatory conduct has occurred.

The respondent relies on section 38A of the Act to say that the burden of proof does not shift onto the respondent to prove that discriminatory conduct did not occur. The respondent will rely on this section to apply to dismiss the proceedings and also on Public Appointments Service v Lester [EDA2325] to ground this application.

Even if she does establish facts which are presumed to contain prohibited/discriminatory conduct, that presumption is clearly rebutted by the evidence to be offered in the case. Specifically, the interview notes and formal reviews of the interviews plainly demonstrate that the Complainant was not treated in a discriminatory manner in any way.

Accordingly, the respondent will rely on section 22 of the Act to apply for the complaint to be dismissed on the ground that the complaint is misconceived. The respondent therefore denies that the complainant is entitled to redress arising from the within complaint, or to any relief.

The complainant does not establish facts which give rise to a presumption of discrimination. There is no specific conduct that the Complainant can reasonably describe as discrimination based on race or nationality. As such, the respondent does not bear the burden of proving that discrimination did not occur (section 38A of the Act).

In Public Appointments Service v Lester [EDA2325], the Labour Court considered the burden of proof and held:

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Labour Court went on to say:

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of  discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. 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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. [Emphasis added].

In this case, the Complainant’s complaint does not establish any facts which support her claim that she was discriminated against based on her race/nationality. It is clear from the interview notes and the formal review reports that every accommodation was made for the Complainant and that she was treated fairly in the interview process.

It is entirely understandable that the Complainant is disappointed to have failed to have achieved qualifying grades in two interviews. However, the Complainant appears to assume that the only possible reason that she failed the interviews was due to prejudice and discrimination rather than simply failing to meet the required standards.

The claim is one of discrimination in an employment context, and therefore the complaint should have been made under the Employment Equality Act 1998 (as amended). The respondent did not provide services to the complainant, and therefore the Equal Status Act 2000 does not apply, and the WRC does not have jurisdiction to hear and determine the dispute.

The complainant has not demonstrated bare facts which are capable of giving rise to a presumption of prohibited/discriminatory conduct. The respondent therefore does not bear the burden of proof of proving that no discrimination occurred in this case.

The complainant did not offer any substantial explanation for her decision to make the complaint under the Equal Status Act.

The respondent raises two objections, one more critical than the other in that it relates to whether the complaint has been made under the correct statute.  This is an important preliminary matter as the complaint has been made under the Equal Status Acts, and not the Employment Equality Acts.

This is fundamental to whether a WRC Adjudicator has any jurisdiction to proceed with the complaint. There is some discretion possible in relation to the detail provided on a WRC complaint form, but it will rarely extend to a complaint being made under the wrong legislation, except where this is an administrative or drafting oversight. There was no suggestion of that in this case.

The second, if not strictly speaking a procedural point, is whether the complainant has made out a prima facie case.

The complainant, who was not professionally represented made little effort to state a case that her complaint should be considered  under the Equal Status Act.

The hearing was adjourned on the basis that I would consider whether the case could proceed under the Equal Status Act, and if it could, then whether a prima facie case had been made out. If this second test had been met, then I undertook to re-schedule a hearing on the substantive complaint.

I find as follows.

The complaint is entirely misconceived.

The Equal Status Act applies in situations where it is alleged that there has been discrimination in the provision of goods or services. It is submitted by the respondent, that, the holding interviews for a job a party does not provide a “service” of the type which  attracts protection under the Equal Status Act and agree that it does not.

The correct legislation, as noted in the respondent‘s submission is The Employment Equality Acts 1998. Section 8(1) of that Act states:

In relation to—

(a) access to employment […]

“An employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker. [Emphasis added].

So, this is clearly the applicable statutory provision, and the complainant has submitted her complaint under the wrong legislation.  There is therefore no jurisdiction to consider it further.

Likewise, there is no requirement to address the second issue as to whether a prima facie case has been made out in the circumstances although, on the basis of the above facts, I venture the view that the complainant would have had very considerable difficulty in doing so.

For the reasons set out above complaints CA-00067286-001 and 002 are not upheld as they are not within jurisdiction

Jurisdiction