Complainant

Respondent

Parties

Yassine  Hamaidi

Threatlocker

Representatives

Self-Represented

Michael Kinsley Bl instructed by Victor Clarke of Clarke Jeffers LLP

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-00071442-001

08/05/2025

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

CA-00071442-002

08/05/2025

The issues in contention concern an allegation that a signed Offer of Employment to an Account Executive by a Financial Services & Software Company was arbitrarily withdrawn on Discrimination Grounds (Race and Nationality).

The Employment process began with an offer of employment on the 17th of January 2025 and ended by a Respondent withdrawal letter/e mail on the 9th April 2025.

CA: 00071442-001 and CA: 00071442-002

The Complainant was self-represented. He gave a comprehensive Oral Testimony supported by his detailed complaint form and copy correspondence/e mails with the Respondent.

He had been offered an Account Executive position on the 10th January with a start date of the 3rd February 2025. For reasons connected with notice to his then employer, the start date was extended to the 3rd March 2025. Closer to the March date he had contacted the Recruitment Officers to enquire about the logistics of his start date. He also inquired about a Visa to the USA where the preliminary Training was due to take place. The Recruiter expressed concern at this question and enquired regarding the Visa status of the Complainant. She expressed considerable surprise stating “Oh, so you are not Irish”. He replied that he was of Algerian nationality but had a Stamp 4 Visa for Ireland. This guaranteed him full working rights in Ireland. The suggestion that he would not, because of his Visa status, be able to travel, without legal/US Immigration obstacles, to the United States was blatantly false. He had full international travel rights.

The Recruiter stated that the issue would have to be referred to HR. Shortly afterwards he was informed that the Employment offer was being withdrawn. The file, he was assured, had been reviewed at the highest level in the organisation to see if there was any way around the problem.

The Complainant argued that he had been Unfair Dismissed on Discriminatory Grounds under the Employment Equality Act and had been directly Discriminated against on the Racial/Nationality Grounds. He had never concealed his Nationality, and the withdrawal of a job offer after some 8 weeks was clearly Discriminatory.

In verbal replies to cross examinations, he denied that requests for a deferred start were perfectly acceptable as they were linked to his third level studies.

CA: 00071442-001 and CA: 00071442-002

The Respondent was represented by Mr Kinsley BL supported by a Managerial witness, Mr McN. A full written submission was provided. The facts of the case as regards dates etc were not contested.

The essence of the Respondent case was that the Complainant firstly engaged in a delaying process as to his start date, seeking two postponements and secondly did not have clear & unambiguous travel authorisations to visit the United States -a stated requirement from initial /advertisement recruitment of the offered position.

 The Respondent was a very multiethnic organisation with numerous nationalities. The Complainant’s Nationality or ethnic Origin had nothing to do with the withdrawal of the job offer. Visa issues were not linked to Racial origins or Nationalities. The repeated delaying/postponement requests had given rise to serious concerns about the commitment of the Complainant to the Company. This was the real issue for Senior Management when the file was reviewed.

In support the Respondent pointed to the Equality Tribunal decision Yushehenco v Dept of Education and Science DEC-S2009-034 where the Tribunal found that VISA conditions could allow what might ordinarily be called Discrimination.

In addition, Mr Kinsley BL also cited the Buden of prima facie Proof requirements emphasised in Mitchell v Southern Health Board DEE 11 [2011] ELR 201 and other cases such as A Claimant v An Garda Siochana DEC -E2014-079. The Complainant had failed to establish a clear prima facie case of Discrimination on the Race Grounds.  For instance, No “comparator” i.e. a person or other employee who had been treated “more favourably” had been referenced.

Full cross examination between the Parties took place.

3:1      Legal Position

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an employment Equality case, such as here, it is necessary to firstly establish certain Legal issues -these being

1.       In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is he eligible to being a claim?

2.       Was he discriminated against?

3.       Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

4.       Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“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.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2        Consideration of the Evidence.

The Oral evidence was critical here.  The Irish HR/Recruitment Person had referred the case to the US Head Office.  The reply as discerned from E mail traffic was the withdrawal was due primarily the “delays in taking up the job offer”. The first start date has been the 3rd February but this had been extended, at the Complainant’s request to a March date with a strong suggestion of a further extension, to an April date, being requested. The repeated requested delays had convinced the US Managers that the Complainant was not really serious about the offered job vacancy.

While not objectively stated it also appeared to the Adjudicator that it was implicit in the carefully drafted e mails / correspondence and the Oral testimony that a person of Algerian origin with a Stamp 4 Irish Government Authorisation was a major unknown for the Respondent as regards getting in or remaining in the USA - especially in the current VISA / ICE situation

The safe option for the Employer on both grounds was not to proceed with the job offer.

The argument was made by Mr Kinsley that Nationality or racial origin was irrelevant in this Respondent decision making process. It did not matter what Race you were if you delayed in your agreement to an employment start date. Likewise, your Race was not connected to your Visa Status.

In Yushehenco v Dept of Education and Science DEC-S2009-034 Yushehenco v Dept of Education and Science DEC-S2009-034   Kinsley argued the issue of VISA and Nationality had been clearly differentiated. The same argument applied in this case.

3:3         Adjudicator Conclusion.

Referring to the four key questions at Section 3:1 above

3:3:1       In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. In other words, is he eligible to being a claim?

The answer to this question is clearly in the affirmative. The Complainant had valid job offer in writing and the withdrawal of same is sustainable ground for a complaint.

3:3:2      Was he discriminated against?

Discrimination is generally defined as being “Treated less favourably” than another Person. This was a Racial origins complaint – regrettably for the Complainant there was no sustainable evidence that his Race or Ethnic Origin had been a deciding issue. A VISA Stamp Four can be held by persons of multiple nationalities and their international travel permissions are not in the gift of any employer. There was no suggestion that people of another Nationality, holding a Stamp Four, would be treated in a more or less favourable fashion as regards international travel.

The delays in accepting the job offer, as cited by the Respondent employer, did not have any Racial Origin content.

On overall balance the Adjudication Officer had to find that the strict evidential prima facie rules as regards a Discrimination complaint were not met.

3:3:3         Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

As discussed above, having reviewed the evidence both Oral and Written, the answer to this has to be, in the absence of direct proof, in the negative.

3:3:4       Depending on the above answers, the Provisions of Section 85 (a) The Burden of Proof then apply.

Burden of proof.

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.

(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 Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority 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,

(b) victimisation,

(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.

(Underlining by Adjudication Officer).

In plain English the onus is on the Employer to prove that no discrimination occurred once the Complainant has established a prima facie case -this does not have to be absolute proof, just a reasonably strong “inference” of Discrimination – in this case of Racial discrimination.

Regrettably for the Complainant this has not been the case in this Complaint. The withdrawal of the job offer could not be said to be exclusively or even strongly linked to a Race Discrimination factor.

3:4       Adjudication Conclusions

The case, as explained above, has failed to establish a prima facie case of Race Discrimination. The complaint has to be seen to be unsuccessful.