Complainant

Respondent

Parties

Thomas Michael  Bennett

Bank Of Ireland

Representatives

Ciara Ruane Bank of Ireland Group Legal Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00071646-001

17/05/2025

The complainant gave evidence on oath.

He attended a screening interview online in December 2024 and was told at the end of the interview that he was by far the outstanding candidate. The interviewer told him that she was impressed.

There was some reference to his lack of experience in the Finance sector, but he says that he was told that it would be good to have someone who would bring fresh ideas from a different sector.

Over a month later, on January 14th in an online meeting using cameras, the then interviewer could see that he was an older person. The demeanour of the interviewer appeared to the complainant to indicate a degree of surprise at the complainant’s age, and this implied a discriminatory attitude.

Through the lengthy interview process, he repeatedly asked for a quick decision because BOI was his choice of workplace, He was turning down consultancy contracts. This request went unheeded.

When he eventually received the rejection letter, it stated it was due to his lack of experience in the Finance sector. During the complaints procedure, this was questioned by him, and he was never given an adequate reason. He was not told the age of the successful candidate.

He feels that once his ‘older face’ was seen they decided at that point not to go ahead with the employment.

The complainant brought the complaint against "Bank of Ireland.” The correct respondent is the Governor and Company of Bank of Ireland the complainant has also brought the claim pursuant to section 21 of the Equal Status Act which is submitted to be the wrong statutory claim as the alleged discrimination does not relate to good or services.

While it is recognised that the Adjudicator has discretion to make changes to the complaint form in certain circumstances, it is respectfully submitted that such discretion should not be exercised in this case and therefore the Adjudicator does not have jurisdiction to hear this claim.

Discretion tends to be exercised where there is a technical, clerical, or administrative error. Re: Maere's Application, [1962] RPC 182 the term (a UK case), "clerical error" was described as,

'.. a mistake in the course of some mechanical process such as writing or copying as distinct from an error arising, e.g. from the lack of knowledge, or wrong information, in the intellectual process of drafting language to express intention”.

These errors appear to be due to lack of knowledge and were not a mere technical, clerical or administrative error.

The complainant applied for a Business Continuity and Resilience Manager role with the Respondent. There were one hundred applicants for the role. Twelve were shortlisted for the role including the complainant.

He was interviewed for the role on January 8th, 2025, by David Gethings, Senior Manager Operational Resilience and Olivia Reilly Senior Business Continuity Manager. They were not provided with information concerning the complainant's age.

During the interview he was asked some technical questions and competency questions relevant to the role. The same format and set of questions were used for all candidates.

He was not successful for the role as another candidate had more relevant experience required for the position. The complainant scored a total of 290 during the interview process whereas the candidate who was successful scored 470 during the interview process.

On February 21st, 2025, the Complainant was provided with feedback in relation to his interview. His score was confirmed and he was informed that due to his lack of experience in the Financial Services industry and given other applicants had this experience he was not successful for this role.

The complainant raised a complaint on March 29th, 2025, in relation to the process.

The respondent investigated the complaint and responded to the complaint on May 2nd, 2025. As part of the response, it was confirmed to the Complainant that "applications with the desirable skills and experience were also interviewed, who were able to demonstrate more of the experience we require for this position".

Employment Equality Act - Burden of Proof

It is submitted that that complainant has not met the burden of proof that he bears to establish that a presumption of discrimination has occurred. Section 85A of the Employment Equality Act 1998 provides as follows:

BSA (1) Where in any proceeding’s 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.

Therefore, the burden of proof in the first instance is on the Complainant to establish facts, which on an initial examination led to a presumption that discrimination in relation to access to employment has occurred.

Melbury Developments Limited v Arturs Valpeters, [EDA0917] the Labour Court expanded on what is required to establish the initial proof that discrimination has occurred:

"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 speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section BSA places the burden of proof fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule."

In Southern Health Board v Mitchell {2001] ELR 2001 the Labour Court considered the extent of the evidential burden imposed on a complainant by section BSA 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."

It is submitted that the Complainant has not established facts which are of sufficient significance to raise an inference of discrimination against the Respondent.

Further, the Complainant has not identified less favourable treatment than another person in a comparable situation, commonly known as a comparator, on the grounds of age. As per the decision in A Health and Safety Officer v A Construction Company [ADJ-00052858] "This is an essential element to meet the burden of proof that discrimination can be taken to have occurred".

Employment Equality Act-Alleged Age Discrimination

Without prejudice to the above, the allegation of discrimination on the grounds of age is fully denied. The Respondent is committed to Inclusion and Diversity, anditsPolicyincludeshaving anInclusiveHiring Charter.Asan employertherespondentiscommittedtoanumber ofstandards whenrecruiting, includingalwaysmakinganappointmentonmeritandonlyproceedingto interviews withadiverse candidate shortlistinplace.

In addition, all employees involved in recruitment must complete mandatory Inclusive training.

The interviewers were not provided with any information concerning the complainant's age and he was not asked any questions in relation to age. A copy of the interview notes was submitted.

He was not successful for the role as another candidate had more relevant experience required for the position and scored higher than the Complainant during the interview process. The interview scores for each candidate were submitted. The interviewers will provide further evidence at the hearing on the recruitment and selection process.

We refer to A University v A Worker (Labour Court decision - CD/16/143} where the Labour Court stated in a dispute in relation to a promotion opportunity:

"This Court has consistently adopted the position that it does not substitute its decision for that of an employer's recruitment or promotional panel regarding the merits of a candidate for employment or promotion. The Court can only look behind a decision in relation to appointments where there is clear evidence of unfairness in the selection process or manifest irrationality in the result. The Claimant has not made out any such case to the Court in the within proceedings. It is evident to the Court that he did not meet the stated eligibility criteria for promotion to the grade of Senior Lecturer in the 2011 competition. The appeal, therefore, fails'

It is submitted that the decision was made solely based on the requirements for the role and not based on the complainant's age. The selection process was conducted fairly.

Olivia Reilly gave evidence on affirmation. She is a Hiring Manager with the respondent and participated in the interview with the complainant.

She described the process in which the respondent was processing about a hundred applications for the position. There was initially a screening step online followed by an interview.

The interviews were conducted by reference to standard questions and a marking and weighting system and the witness confirmed that she and a colleague (also in attendance at the hearing) and that the marking had been carried out on that occasion and had not been revised since that interview.

She confirmed that her Department Head did conduct an online interview with the complainant (and only the complainant) but that this had played no part in the selection process.

She confirmed that she did tell the complainant that his lack of experience in the financial services sector would not impede his progress in the competition of itself. However, in making the final selection it was decisive as another candidate did have that experience. Ultimately the complainant scored significantly below the successful candidate.

Ms Reilly also stated that members of interview boards are trained in the principles of equality and apply them.

The complainant has an impressive track record in his professional field, in Ireland and internationally, although apparently not in the financial services sector. As has been seen a preliminary issue arises as to whether the complaint was made under the right statute.

As noted by the respondent, an Adjudicator has some discretion in relation to the detail on a WRC complaint form. It is not a statutory form and complainants who do not have the benefit of professional support may sometimes make mistakes in filling it out.

An example in this case was the correct legal name of the respondent, to which attention was drawn above. This is an important issue in the event of enforcement proceedings as a complainant would have very great difficulty in securing enforcement against the wrong legal entity.

In respect of that error the respondent was happy to register its point and correct the record and the hearing proceeded.

However, it is a different matter where the wrong statute has been relied on for the complaint.

While WRC hearings are generally conducted with much less formality than court proceedings, they are nonetheless tribunals engaged in the administration of justice and exercising a limited constitutional role.

I do not necessarily accept the respondent’s submission that an Adjudicator’s discretion is confined to a clerical error, but it is easier to say that it does not run to the amendment of the statute under which the complaint has been made (unless, perhaps that too were in the nature of a clerical or typographical error) but not where the wrong statute is named and the matter proceeds to a hearing.

As is the general practice in the WRC, I reserved my position on that point and heard evidence as set out above.

While as it turns out it is irrelevant to say so, the facts giving rise to the complainant’s disappointment at the outcome of his application would not have represented a prima facie case. It turns out that the incident on which he primarily relied to ground his complaint played no part in the final selection decision.

But in any event, his naming of the wrong statute makes that irrelevant.

For that reason, his complaint does not succeed and is not upheld.

For the reasons set out above Complaint CA-00071646-001 is not upheld as it has not been made under the correct statute.

Wrong statute named.