Complainant

Respondent

Parties

James  Monaghan

Erris Chamber of Commerce

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00071325-001

06/05/2025

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

CA-00071325-002

06/05/2025

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

CA-00071325-003

06/05/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation, the witness for the respondent gave his evidence under oath.  Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”

The complainant attended an interview for a position on a CE Scheme placement.  He submitted that he was asked inappropriate questions regarding his age, haircut, origin, family background and nationality.  He submitted that these amounted to discrimination under the Age, Gender and Race grounds.

The complainant provided brief oral evidence in support of his claim and submitted documentation in that regard as well.  No cross examination took place.

The respondent submitted that no formal interview took place and that if any questions were asked that they happened in relation to an informal conversation regarding the vacancy.

The witness was the current chairperson of the respondent.  He stated that no formal interview took place rather, it was just an informal chat to see whether the complainant would even like to be a candidate. He said that he only asked the complainant his age to verify that he would qualify for the CE scheme as there is a minimum age requirement of 21.  He confirmed that the issue of alcohol consumption was raised with the complainant as the respondent organised a number of social evenings as part of its working brief.  He stated that as he himself did not have any hair, that he said perhaps the complainant would need to cut his before he went bald too.  He stated that he discussed the complainant’s family in relation to whether they worked locally, he confirmed that he knew the complainant’s mother as she worked in a local hotel.

The witness stated that he presumed that the complainant was Irish as he was looking for work through a CE scheme and stated that he only asked the complainant had he travelled overseas as he himself had travelled a great deal overseas.

Under cross examination the witness was asked if the meeting was only just an informal conversation, why were interview style questions asked of him.  It was also noted that the witness asked the complainant on a ‘man-to-man’ basis would he be prepared to cut his hair.

The respondent submitted that the conversation that took place did not amount to an interview.  The complainant stated that it did.

Section 8(5) of the Act states that:

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered.

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

Section 8(5)(a) does not detail that any conversation regarding prospective employment must be in an interview format and does not make a distinction between formal and non-formal arrangements.  There I find that Section 8(5) of the Act is equally applicable to an informal approach regarding filling a vacancy.

The parties outlined an informal conversation that took place between a possible employee and employer.  A number of questions were asked, which to my mind, tried to establish a rapport between the parties and in the context of a local, tourism based, CE scheme tried to place the prospective candidate within the locality.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status] ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

The complainant stated that asking a question regarding his age was prohibited under the Act. The respondent indicated that the question was simply meant to verify the complainant’s entitlement to qualify for a CE Scheme which was a prerequisite to filling the vacancy.  The age threshold is set by the Regulations governing the CE scheme and are not within the power of the respondent to set or alter.

Section 85A of the Act deals with the Burden of Proof in Employment Equality cases.  Section (1) states as follows:

85A.—(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.

Having regard to the foregoing, the onus is on the complainant to produce evidence that demonstrates, or from which it is possible to presume, that discrimination has occurred.

The complainant has not adduced any evidence whatsoever that he was discriminated against on the basis of age.  He was asked a factual question regarding his entitlement to be employed under the CE scheme.  This does not establish facts of age-related  discrimination.  Accordingly, I find that the age element of the complaint has not been established by the complainant.

The complainant submitted that being asked a question as to whether he would cut his hair for the position, amounted to discrimination on the gender ground.  The witness for the respondent stated that he made a funny reference relating to his own baldness.  Notwithstanding the foregoing, the complainant did not link the comment or question with any gender-based aspect, other than to reference the comment that it was asked “man-to-man”. I find that the reference to ‘man-to-man’ does not amount to gender-based discrimination.  Therefore, no facts as to gender-based discrimination have been established by the complainant.  Accordingly, I find that the gender-based element of the complaint has not been established by the complainant.

The complainant submitted that by being asked had he travelled overseas.  The witness for the respondent confirmed that he had travelled extensively overseas.  Although his attempt to establish rapport with a prospective employee may have been clumsy, I do not find that this amounts to discrimination on the race ground. Therefore, no facts as to race-based discrimination have been established by the complainant.  Accordingly, I find that the race-based element of the complaint has not been established by the complainant.

Having regard to the foregoing, I find that the complainant has not established facts from which discrimination may be inferred.  Accordingly, I find that the complainant was not discriminated against.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality – access to employment established – burden of proof - facts of discrimination not established – no discrimination established.