Complainant

Respondent

Parties

John  Keenan

Tesco Ireland Ltd

Representatives

 Thomas Keenan (Complainants Father)

Michal Kingley BL instructed by Tesco Ireland Legal Dept

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-00066704-001

15/10/2024

The Complainant is a member of the Traveller community and submitted a CV for a summer role in the Respondents Ennis store.. The Complainant did not get any reply to his CV and maintained that this was due to him being a member of the Traveller community.

The Complainant gave evidence he submitted his CV around May/June 2024 to the Respondents Ennis Outlet. He believed they were looking for help and met a Manager that he described as 5ft 8 and of dark skin. He did not know the name of the Manager. He advised the Manager told him he would get someone to contact him. He maintained that he did not get any reply to his CV because he was a member of the Traveller community and he had been discriminated against.

The Respondent is the operator of a supermarket chain in Ireland.

The Complainant asserts in his WRC claim form that he attended at the Respondent’s store in Ennis, County Clare and asked whether there are staff vacancies. The Complainant has not identified the date or time of his attendance at the store or the Manager to whom he is alleged to have spoken. The Respondent is prejudiced and disadvantaged in its response to the within claim without these details.

The Complainant asserts that he was asked to leave a CV to the person at the Customer Service Desk. The Complainant’s claim is that the failure to contact him following the delivery of his CV to the Customer Service Desk, amounts to unlawful discrimination under the EEA. 

As is set out briefly in the Respondent’s letter to the Complainant of 12 September 2024, the Complainant was not treated any differently to any other person and was certainly not subjected to less favourable treatment on the basis of his membership of the Traveller Community.

The Respondent’s witnesses will give evidence that it operates an online system for applications for employment, and that the online portal provides the vast majority of applicants for employment and it is from this source that the Respondent calls applicants for interview. The Respondent’s witnesses will give evidence that while people sometimes do apply for employment in store, this is rarely the source of new employees for the Respondent. Evidence will be given on behalf of the Respondent that, while people do leave CVs into the store, the volume submitted means that it is not possible to contact each applicant.

While the Respondent is not aware of when the Complainant is alleged to have submitted a CV, the Respondent would have had many applicants in May 2024 and many CVs would have been submitted to the store without a response. The Respondent is not obliged to respond to a CV being submitted and does not, and did not in the Complainant’s case, fail to respond on the basis of any protected characteristic.

The Complainant does not address whether he applied for employment via the Respondent’s online recruitment channels.

The Complainant was not treated less favourably by the Respondent on the grounds of his membership of the Traveller Community. The Complainant was treated in the exact same manner as any other member of the public who left their CV to the Customer Service Desk at the Respondent’s store.

 Legal Submission

Employment Equality Act 1998

The within proceedings concern a claim by the Complainant that he suffered discrimination, contrary to the provisions of the Employment Equality Act 1998, as amended (the EEA). The Complainant claims that this prohibited conduct was based on his membership of the Traveller Community.

Section 6 of the Employment Equality Act 1998, as amended (the 1998 Act) provides the definition of discrimination. It states at subparagraph (1):

“(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 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—

exists,

existed but no longer exists

may exist in the future, or

is imputed to the person concerned”

Section 8 of the 1998 Act prohibits discrimination against an employee or prospective employee in relation to:

“(a) access to employment;

conditions of employment;

training or experience for or in relation to employment;

promotion or regrading, or 

classification of posts”

  Burden of Proof

Section 85A(1) of the 1998 Act provides the following in respect of the burden of proof in claims of discrimination, harassment, sexual harassment and victimisation:

“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.” 

In Nathan v. Bailey Gibson Limited [1998] 2 IR 162 the Supreme Court, in analysing the burden of proof (albeit an older wording) in equality cases, held

“It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the complainant's sex.”

In Dyfen Publications Limited v. Diana Spasic (ADE 08/7) the Labour Court

(adopting the approach of the UK Court in Madrassy v. Nomura International plc [2007] IRLR 246 stated that “…the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent”.

In Smith v. Office of the Ombubsman & Ors. [2020] IEHC 51 the High Court per Simons J. discussed the provisions of Section 38A of the ESA and the burden of proof which arises from the section. It stated

“Section 38A gives effect to article 8 of the Racial Equality Directive (Directive 2000/43/EC). The complainant must establish a prima facie case of discrimination, i.e. the complainant must establish facts from which it may be presumed that there has been direct or indirect discrimination. The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions. (See discussion at paragraphs 34 to 39 above).

Where it is alleged that discrimination has occurred on the ground of race, it is necessary to establish a prima facie case that the complainant has been treated less favourably than another person is, has been or would be treated in a comparable situation, on the ground that the complainant is of a different race, colour, nationality or ethnic or national origin.”

In Southern Health Board v Mitchell 2001 ELR 201 it was held in respect of the burden of proof  

‘the first requirement is that the Complainant 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 Complainant must prove on the balance of probabilities, the primary facts on which they rely and 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’.

In the instant case, taking the Complainant’s evidence at its height, the Complainant left a CV at the Respondent’s store and did not receive a call back. The Complainant was not treated any differently than any other member of the public. The Respondent operates an online system of recruitment, and this appears not to have been utilised by the Complainant.

The Complainant has failed to provide any evidence of a discriminatory practice on the part of the Respondent and has failed to identify a comparator who it is alleged was treated differently. It is submitted that, in the above circumstances, the Complainant has completely failed to discharge the evidentiary burden placed on him by the EEA.  

It is respectfully submitted that the matters asserted by the Complainant do not amount to discrimination. It is submitted that an alleged failure to contact the Complainant after the Complainant asserts that he left his CV into the Respondent’s store simply cannot amount to discrimination under the EEA, in particular because others, who do not share the Complainant’s characteristic were treated in the exact same manner. 

The Law;

Section 6 of the Employment Equality Act 1998, as amended (the 1998 Act) provides the definition of discrimination. It states at subparagraph (1):

“(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 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—

exists,

existed but no longer exists

may exist in the future, or

is imputed to the person concerned”

Section 8 of the 1998 Act prohibits discrimination against an employee or prospective employee in relation to:

“(a) access to employment;

conditions of employment;

training or experience for or in relation to employment;

promotion or regrading, or 

classification of posts”

In Southern Health Board v Mitchell 2001 ELR 201 it was held in respect of the burden of proof  

‘the first requirement is that the Complainant 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 Complainant must prove on the balance of probabilities, the primary facts on which they rely and 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 Complainant was cross examined on his evidence (provided above). He advised he submitted the CV two years ago and in response to what he was currently engaged in, he advised he was a student of Civil Engineering in TUS Limerick. He advised he did not know the date he submitted the CV. He was queried why he did not submit in his ES! Form that he didn’t say before that he thought they were looking for help and he replied he was not 100% sure they were looking for people or not. He was asked why he did not include his description of the Manager in the ES1 form and allow Tesco the opportunity to examine his complaint at the time. (ES! Form was submitted under a different Act). He was asked to specify the date he went to the Store and he replied he thought it was in May and in the afternoon and he did not know the date. He was asked did he expect Tesco to go through a full months CCTV and he replied yes he did. He was asked how long after he submitted the CV did he follow up and he did not know but maybe it was two weeks. He was asked did he ring Tesco or go into the shop after wards to follow up and he advised no. He was asked how many times he may have been in Tesco during the summer of 2024 and he advised maybe once or twice and asked did he ever check why no one had not got back to him, he advised no. He was asked how he got into TUS and he advised he applied on line and was asked did he know about the Tesco on line portal for applying for TESCO jobs in any of its stores worldwide. The Complainant said he was not told anything about applying on line. The Complainant was questioned about his computer/app skills and he said he did not know how to look for a job on line but confirmed he filled in his CAO form on line with the help of his father.

Mr. Fleming, Tesco Ennis Store Manager gave evidence to the Hearing, He advised he was the Ennis Store Manager for 9 years. He advised since May 2024 there was an on line portal for recruitment and that’s how they recruit if looking for a new hire. Prior to that people lefts CVs at the Customer Service Desk. He said people keep an eye on line if they are looking for a job. He advised he recognised the Complainants father who comes into the store to shop. He advised staff are all trained on line to treat people with respect and dignity and to be friendly and they are trained on equality. He advised they may have got about 100 CVs in 2024 from people looking for summer jobs and they are advised to look on line. He advised they do not acknowledge back any CVs left at the Customer Service Desk.. Mr. Fleming was directed to the Tesco response to the Complainants ES1 form and asked did he know if the Complainant had applied on line. He advised he was not aware that he had. Mr. Fleming was cross examined by the Complainants Representative who stated the Complainant got a job in X Take Away (name redacted) and was still working there and that’s why he did not go back to Tesco for a job. Mr. Fleming was questioned on the number of CVs he said he got at the Customer Service Desk and he replied he did not count them but it was about 100. He was asked was there any Traveller working in the store now and he replied no but there had been during his time there.

The Respondent Representative concluded by stating no prima facie case had been made out and alleged the complaint was just a fishing exercise and the Respondent does not know the ethnicity of applicants and does not discriminate on ethnicity.

Findings

The Complainant has alleged he was discriminated against because he was a member of the Traveller community in applying for a position with the Respondent.

The Complainant did not know the date he submitted his CV or the name of the person he gave the CV too. There is no legal obligation on an Employer to reply to a CV (it may be good HR practice but that’s a separate issue). In order to succeed in a discrimination case of this type a Complainant must show a person not of the Traveller community was treated differently to the Complainant in the same circumstances. The Complainant was asked at the Hearing by the Adjudicator did he know anyone that was not a member of the Traveller community that submitted his CV in the same manner/time as him  and was contacted by the Respondent. He replied he did not. 

The Complainants Representative said he knew of no Traveller that was ever employed by Tesco Ennis but this was countered by the Store Manager who knew of one person (while he was employed) that was a member of the Traveller community and employed at the store. The Complainant Representative was asked was he aware of any name of a Traveller who had applied to the Respondent location and he was not aware of any. The relevance of this final interaction to the current case is marginal, if at all.

Having considered all the submissions and evidence It has not been established that the Complainant was treated any differently to the 100 or so other people who handed in a CV at the Customer Service desk in the summer of 2024 looking for summer jobs. I find he has not established a prima facie case of discrimination and his complaint is not well founded.

I find that the Complainant was not discriminated against.

Access to employment