SWEENEY(REPRESENTED BY THE EQUALITY AUTHORITY) AND SAEHAN MEDIA IRELAND LTD. (REPRESENTED BY IBEC)
1. DISPUTE
This dispute involves a claim by Mr. Sweeney that he was discriminated against on grounds of membership of the Traveller community, within the meaning of section 6(2)(i) of the Employment Equality Act, 1998 and in contravention of sections 8 and 31 of that Act, when he was not offered employment with the Saehan Media Ireland Ltd. following a selection process conducted by the respondent in May, 2000.
2. BACKGROUND
2.1 The complainant applied for work as a General Operator at the respondent's plant in Sligo and presented for interview on 25 May, 2000. He alleges that at the end of this interview he was informed he was successful and that he could commence work on 6 June, 2000. However, a couple of days later he was advised that he would not be commencing employment but his details would remain on file. The complainant contends that he was refused employment because he was a member of the Traveller community. The complainant further alleges that the respondent indirectly discriminated against him on the same ground by requiring applicants for the post to have a standard of education to
Leaving Certificate level. The respondent denies all of the complainant's allegations.
2.2 The Equality Authority, on behalf of the complainant, referred a complaint under the Employment Equality Act, 1998 to the Office of the Director of Equality Investigations on 23 November, 2000. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties. For a number of reasons a hearing of the complaint was not possible until 30 April, 2002. A number of issues emerged at the hearing which required clarification and gave rise to further correspondence between the parties subsequent to the hearing. Final confirmation that the parties were satisfied that the Equality Officer was in possession of all necessary material from their perspective was received on 8 April, 2003.
3. SUMMARY OF THE COMPLAINANT'S CASE.
3.1 The complainant states that he became aware of vacancies at the respondent's plant from his brother-in-law, who had seen an advertisement in a local newspaper sometime in May, 2000. The complainant further states that he submitted an application form and Curriculum Vitae to the respondent and was asked to present for interview on 25 May, 2000, which he did. He adds that his appearance when he presented for interview was smart, neat and tidy and wholly appropriate for the position in question. He was interviewed by Ms. A, who works in the respondent's HR Department. The complainant alleges that during the course of the interview they spoke of the nature of the job, the shift cycle it entailed, the rate of pay the post carried and his previous work experience. He further alleges that Ms. A informed him that she had checked out his references, which were favourable, and that she was prepared to offer him employment, commencing on 6 June, 2000. The complainant asserts that Ms. A then asked him if he knew anybody currently working for the respondent, to which he replied yes and gave her the name of Mr. B, who knows the family and is aware that they are members of the Traveller community.
3.2 The complainant states that two days after the interview Ms. A left a message with his brother that the position had been filled internally and he would not be commencing employment on 6 June. When he received this message he contacted Ms. A and was not satisfied with her response. He then telephoned her Manager and was informed that he had misunderstood Ms. A - she did not have authority to offer him employment. The complainant adds that during the course of these conversations neither Ms. A or her Manager made any reference to the complainant's appearance or gave any reason as to why he was unsuccessful at interview.
3.3 The complainant states that the respondent wrote to him on 29 May, 2000 enclosing his Curriculum Vitae and advising that it retained a copy of his CV on file should any suitable positions arise in the future (Appendix A). The complainant adds that solicitors acting on behalf of the respondent wrote to him on 13 June, 2000 stating that his personal appearance at interview was not appropriate and this was the reason he was unsuccessful at interview (Appendix B). On 27 June, 2000 the respondent wrote to the complainant again stating that it would keep his application on file for future consideration (Appendix C). On 26 July, 2000 the respondent advertised for General Operatives in a local newspaper. Despite the contents of the respondent's letters of 29 May and 27 June, 2000 the complainant was not contacted by the respondent in relation to these vacancies.
3.4 The complainant rejects the respondent's assertion that his application form was untidy or that he presented for interview in an untidy manner. As regards that first issue the complainant accepts that he made some minor amendments to the form by crossing out existing text and replacing it, but contends that this does not render the form untidy, or sufficiently untidy, to constitute a valid reason, or part of a number of alleged reasons for refusing him the post. He further contends that this could not be viewed in any way as impinging on his ability to perform the duties of the post. As regards the second issue, the complainant denies that he presented for interview in an inappropriate manner and in particular that his neck was covered in love bites and he made no effort to hide them. He contends that his clothes, whilst casual, were smart and that whilst there were blemishes on his neck on the day, they were as a result of shaving that day which caused an irritation of his skin. The complainant further argues that if the alleged untidy application form and his untidy presentation for interview is, or forms part of the real reason for the respondent refusing his application, why did the respondent inform him that it would retain his application on file as per its letters of 29 May and 27 June, 2000.
3.5 The complainant rejects the respondent's assertion that he would only operate a particular cycle of shift work and contends that he informed Ms. A he was prepared to do any shift. The complainant further contends that his application form clearly demonstrates he did not have a Leaving Certificate standard of education, that this standard of education was not a necessary requirement for the post given the job description, that there was no reference during the interview or the immediate correspondence between the parties requiring a Leaving Certificate level of education and that he possessed the necessary skills and capacity to undertake the post. He submits that the actions of the respondent constitute direct discrimination of him on the ground of membership of the Traveller community, contrary to the Employment Equality Act, 1998.
3.6 The complainant also alleges that the respondent indirectly discriminated against him on the ground of membership of the Traveller community, contrary to section 31 of the Act, by requiring applicants to have Leaving Certificate level of education. The complainant submits that the "Traveller Health and National Strategy 2002-2005" published by the Department of Health and Children estimates that there are approximately 4,900 Traveller families in Ireland. The Central Statistics Office figures for 1996 suggest a family size of 4.9. Thus it is estimated that there are approximately 24,000 Travellers living in Ireland. The complainant adds that data furnished by the Department of Education and Science (Appendix D) indicates that there were 49 Travellers in the final year of Post-primary education in 2001/02. The complainant submits therefore, applying this data, that 0.2% of the estimated Traveller population sat the Leaving Certificate that year. By comparison, 52,190 people of the general population sat the Leaving Certificate in 2000. The 1996 Census showed that Ireland had a population of just over 3.626 million. This indicates that 1.4% of the general population sat the Leaving Certificate that year. The complainant submits that these calculations illustrate that Travellers are seven times less likely to have a Leaving Certificate level of education than the settled community.
3.7 The complainant further submits that the data furnished by the Department of Education and Science (Appendix D) indicates that in 1992, the year he would have been likely to complete his Leaving Certificate had he remained in school, there were 100 Traveller children attending Post-primary schools. However, this data does not furnish a breakdown of these children across the classes. The Department's data also indicates that in 2001/2002 there were 1,381 Traveller children enrolled in Post-primary schools, 49 of whom sat their Leaving Certificate that year. This represents 3.55% of the total number of children attending those schools. The complainant submits that applying this ratio to the data for 1992, it is estimated that only 3 or 4 Traveller children would have been at Leaving Certificate level at that time. The complainant also submits that whilst the Department of Education and Science's initiative "Visiting Teacher Services for Travellers" has impacted in a positive manner on the number of Traveller children attending mainstream Post-primary schools, Sligo did not have such a service until 1999, some seven years after he would have been likely to sit his Leaving Certificate.
3.8 The complainant argues, in light of the comments in the preceding paragraphs, that the requirement of the respondent that candidates for the post have a Leaving Certificate level of education, indirectly discriminates against him as a member of the Traveller community, in that the requirement can be complied with by a substantially smaller number of prospective employee who are members of the Traveller community. The complainant refers to the decision of the Equality Officer in Wilson -v- Adelaide and Meath Hospital1 ,
to the opinion of Advocate General Leger in Nolte -v- Landesversicherungsantalt Hanover2 and to the judgment of the European Court of Justice in Rinner-Kuhn3 in respect of the degree of imbalance necessary to raise an inference of indirect discrimination. The complainant also refers to the judgment of the Supreme Court in the case of Nathan -v- Bailey Gibson4 where the Chief Justice stated
"It is sufficient for (the complainant) 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."
3.9 The complainant submits that the respondent cannot justify the requirement of a Leaving Certificate level of education as reasonable in the circumstances. In this context he contends, inter alia, that not all of the advertisements published by the respondent over a period of time for vacancies at the relevant level contained the requirement, that the issue was never raised during the interview by Ms. A and that the complainant along with others were called for interview without reaching this requirement.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that as an result of increased demands for its products it changed its work patterns from a two shift to a three shift pattern over a twenty-four hour day. As a consequence of this it embarked on an intensive recruitment campaign between April-August, 2000, during which it advertised in local newspapers in order to recruit General Operators and Machine Operators. Copies of the advertisements were furnished to the Equality Officer. The respondent adds that it received 193 applications as a result of this recruitment campaign, 94 of whom were called for interview. Of this number 75 presented for interview. Employment was offered to 58 of those who presented for interview - 51 of whom accepted. The respondent states that of the 17 candidates who were unsuccessful at interview 7 failed reference checks, 6 were deemed unsuitable, 2 had obtained alternative employment and the remainder wanted Summer work only. The respondent adds that the 6 candidates deemed unsuitable were for the following reasons -2 could not work the necessary shift arrangements, 2 were late for the interview and failed to show any interest in the vacancy, 1 could only work a four-day week and the remaining candidate was the complainant.
4.2 The respondent states that the complainant presented for interview on 25 May, 2000 and was interviewed by Ms. A. During the course of the interview the nature of the post, remuneration, shift patterns and preferences were discussed. The respondent adds that the complainant indicated he was eager to work but only on a particular 3 shift cycle. The respondent accepts that the complainant was asked if he knew anybody employed with the company but adds that this question is asked of all candidates to ascertain if they are familiar with the operations of the organisation. The respondent accepts that the complainant indicated he knew a particular employee and adds that this person was not contacted, either directly or indirectly, about the complainant. The respondent states that all candidates were asked question relating to their application form in order to assess them across the following criteria -
Punctuality for interview
Personal disposition and presentation
Work Experience
Education and qualifications
Length of service with other employers
Motivation and Flexibility
Adaptability regarding shift work
References
Honesty/Integrity
Overall suitability for position
4.3 The respondent states that the complainant was not considered suitable for employment because of his untidy personal appearance and presentation at interview and because he would only work a particular 3 cycle shift. In other words, he did not meet the criteria as well as other candidates. It adds that the issue in respect of the untidy personal appearance and presentation of the complainant involves Ms. A's observation that the complainant's neck was covered in love bites and that he made no effort to conceal them as he wore an open necked shirt. It rejects the complainant's allegation that he was discriminated against because he was a member of the Traveller community, stating that the respondent was not aware the complainant was a member of the Traveller community, either before or during the selection process, that Ms. A resided forty miles away and had only worked for the company for two years at the time of the interview and that no reference was made during the interview to him being a member of the Traveller community. It submits that the decision not to offer employment was based on the interview and the fact that the complainant was a member of the Traveller community had no bearing on the outcome.
4.4 The respondent rejects the complainant's contention that he was offered employment by Ms. A following the interview. It states that this decision rests with the Head of Human Resources. It adds that no other candidate was offered employment at that time and this action is consistent with its policy on recruitment. The respondent states that the complainant was told that, if successful, the earliest start date would be 6 June, 2000 and submits that he misunderstood these comments. It adds that the complainant was informed of this when he telephoned the company on 29 May, 2000 and it was confirmed in writing to him that day when it returned his Curriculum Vitae to him.
4.5 The respondent rejects the complainant's assertion that he was indirectly discriminated against on the ground of membership of the Traveller community because the newspaper advertisement made reference to a requirement to have a Leaving Certificate level of education. The respondent submits that the complainant was not so disadvantaged in that firstly, he secured an interview, notwithstanding the fact that he did not have that standard of education. Other candidates without that standard of education were also called for interview. Secondly, four candidates who did not have a Leaving Certificate standard of education were offered employment - two of these candidates had a lower level of education than the complainant. The respondent submits therefore, that the issue of a certain standard of education was not a factor in the selection process.
5. REPORT OF THE HEARING
5.1 The complainant stated that the he was under the impression, following the interview with Ms. A, that he had secured employment with the company from 6 June, 2000 and he had refused alternative employment elsewhere as a result of this. He confirmed that the issue of him being a member of the Traveller community was not raised during the interview. The complainant alleged that the telephone conversation with Ms. A took place on 26 May, 2000 the day after the interview, as did the telephone conversation with the Human Resources Manager, although he could not remember this person's name. He added that the reason he was given for his failure to secure employment was that the post had been filled internally and he was not advised that his appearance at interview was an issue.
5.2 Mr. C, the respondent's current Human Resources Manager, stated that the post for which the complainant had been interviewed was General Operator in the Packing Department. These vacancies would have covered a number of areas and he indicated the appropriate job specifications which had been appended to the respondent's original submission. He added that it was not essential that applicants for these posts had a Leaving Certificate level of education but it was desirable. He was unable to explain why some of the newspaper advertisements over the period May-August, 2000 stated that such a level of education was necessary and others did not. He acknowledged that the job could be done by somebody with an Intermediate Certificate level of education who was provided with the appropriate in-house training.
5.3 Mr. C advised that the interviews had taken place over the 3-4 months between May and August, 2000. Approximately 16 candidates were interviewed around the same time as the complainant. He added that it was normal practice within the respondent company for interviews at that level in the organisation to be conducted by an individual member of the Human Resources Department and that is what happened in this instance. He confirmed that there were no formal guidelines within the company on the conduct of interviews.
5.4 The respondent's representative stated that the criteria set out at paragraph 4.2 above were not formally weighted against each other and the relative significance of each was left to the discretion of the interviewer, although each candidate was assessed across them. No formal record of how the candidates scored was retained and a list of suitable candidates in rank order was not prepared. Rather Ms. A would discuss the applicants suitability with the Human Resources Manager, based on her assessment of the candidate following interview and the final decision on the offer of employment rested with that Manager. No record of these deliberations was retained. The complainant's legal representative submitted that the entire process was subjective and that there were no clear links to how the final decision was made.
5.5 The respondent's representative stated that the company had pursued an intensive recruitment campaign in mid-2000 on an on-going basis. He added that it was not company policy to contact unsuccessful candidates from one phase of the campaign and advise them that there were new vacancies. Anybody interested had to apply, or re-apply, as the case may be. He added that the respondent had not contacted any unsuccessful candidates from previous phase of the campaign. The complainant's legal representative stated that the respondent initially informed the complainant he was unsuccessful because the vacancy had been filled internally. Later he was informed that it was because of his untidy appearance and presentation at interview and application form, whilst insisting that it did not know he was a member of the Traveller community. She argued that this sequence stretches the respondent's credibility.
5.6 A member of the Irish Traveller Movement submitted that a member of the Traveller community was clearly identifiable to members of the settled community as a result of a number of factors - low levels of education, surnames, language, accent and dress code. The respondent's representative re-emphasised that the company was not aware that the complainant was a member of the Traveller community and argued that for discrimination to have occurred the respondent would have had to possess this knowledge. He referred the Equality Officer to the Decision in Maughan -v- The Glimmerman5 and Cleary -v
Flannery's Hotel6
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 The issues for consideration by me is whether or not Saehan Media Ireland Ltd. discriminated against Mr. Sweeney on grounds of membership of the Traveller community, within the meaning of section 6 of the Employment Equality Act, 1998 and in contravention of sections 8 and 31 of that Act, when it failed to offer him employment following a selection process in May, 2000. In reaching my decision I have taken into account all of the written and verbal submissions made by both parties.
6.2 Section 6(1) of the Employment Equality Act, 1998 provides :
"For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.".
Section 6(2) of the Act set out the discriminatory grounds which includes, inter alia,
"(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").".
Section 8 of the Act provides, inter alia,
"(1) In relation to --
(a) access to employment, .......
an employer shall not discriminate against an employee or prospective employee....
(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, or
(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.".
The text of section 31 of the Employment Equality Act, 1998, which relates to indirect discrimination, will be included at the appropriate place later in this Decision.
Allegations of Direct Discrimination
6.3 I propose to deal first with the complainant's allegation the he suffered direct discrimination on the ground that he was a member of the Traveller community. It is commonplace in this jurisdiction that the complainant must, in the first instance, present prima facie evidence that he has been treated less favourably than another person is, has, or would be treated. It is only when such evidence has been presented by the complainant, that the onus shifts to the respondent to rebut the inference of discrimination. Whilst this approach is one which has its origin in issues of gender discrimination, it has been applied consistently by Equality Officers in cases of non-gender discrimination and was also applied by the Labour Court in Revenue Commissioners v O'Mahony & ors 7. I therefore propose to adopt this approach to the instant case. Prima facie evidence has been described as "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has
probably occurred.".
6.4 The essence of the complainant's allegations is that the respondent discriminated against him because he was a member of the Traveller community in the course of the selection process it conducted in May, 2000. In particular, the complainant contends that the respondent made inaccurate conclusions based on his appearance at interview, which he asserts is indicative of a common prejudice that Travellers are untidy or careless about their appearance. In addition, the complainant asserts that the requirement to have a Leaving Certificate level of education is contrary to section 8(5) of the Act. The complainant also contends that the lack of objectivity in the selection process supports his allegation that he was discriminated against. The respondent states that it did not discriminate against Mr. Sweeney because it was not aware at any time during the selection process that he was a member of the Traveller community and that the final decision on whether or not to employ him was based on his performance at interview.
6.5 It is clear to me that there are significant shortcomings right throughout the recruitment process which the respondent operated in this case. However, these shortcomings do not of themselves demonstrate the application of bias or discrimination on the respondent's part and I shall return to this issue later. I propose, in the first instance, to examine whether or not the respondent was aware of the complainant's background during the selection process. The respondent stated that it received 193 applications during the period in response to a campaign of newspaper advertisements. A total of 99 applications were rejected, the vast majority of them because the applicants were seeking Summer work. The complainant was called for interview. A number of these applicants, along with the complainant, did not have a Leaving Certificate standard of education. I am therefore satisfied that the fact he was a member of the Traveller community and that he did not have a Leaving Certificate had no bearing on this phase of the selection process.
6.6 The interview was conducted by one person, Ms. A, who was employed in the respondent's Human Resources Department. I note the complainant agrees that the issue of whether or not he was a member of the Traveller community was not raised during the course of the interview. It follows therefore that Ms. A must have acquired knowledge that he was a member of the Traveller community from other sources for the complainant's contention to be successful. I have examined the complainant's application form and Curriculum Vitae upon which Ms. A wrote her notes during the interview. These notesmake no reference to the complainant being a member of the Traveller community. They do however, contain the following comments - "covered in love bites on neck, not very professional, didn't make am effort to hide them. Not suitable due to untidy personal presentation and appearance". I am satisfied, therefore, that the fact the complainant had blemishes on his neck - a fact which is not disputed - influenced Ms. A's assessment of him at interview. Her assessment at the time was that these blemishes were love bites. However subjective this evaluation was, I cannot accept the complainant's argument that she associated the marks on his neck with members of the Traveller community and as a consequence discriminated against him. I believe, on balance, that she would have reached the same conclusion if the candidate had not been a member of the Traveller community and that her decision not to recommend employment would have been the same in those circumstances.
6.7 A member of the Irish Traveller Movement (ITM) opined that there are certain features, behaviour and characteristics associated with Travellers which would identify that person as a member of the Traveller community to a person in the settled community. In my view, these features, behaviour and characteristics present too broad a picture of a Traveller - a picture which should be evident for all to see and offers a stereotypical model of those individuals. I offer no opinion on whether or not this is an accurate reflection of members of the Traveller community in general. However, I observed the complainant at the hearing in an environment which, in my view, is comparable to that at an interview and I did not form the impression he fitted the stereotype outlined by the ITM representative. I find, on balance therefore, that Ms. A would not immediately jump to the conclusion that he was a Traveller on the basis of his appearance and her interaction with him at interview and that her assessment as to his suitability for the post was not influenced in this regard.
6.8 The complainant states he was under the impression at the end of the interview that he had been offered employment by Ms. A and was due to commence work on 6 June, 2000. The respondent submits that this is a misunderstanding on his part and that Ms. A had no authority to make such an offer, although it accepts details of the post etc. were discussed at interview. I have examined copies of the application forms in respect of other candidates who were interviewed by Ms. A. The general thrust of her comments are either to "hire" or "not suitable". I am satisfied, on balance, that these comments suggest she was recording an impression of the candidate at interview for further discussion with another person at a later stage. The complainant has adduced no evidence to support his contention that he was offered employment by Ms. A at any time. I am therefore satisfied, on balance, that Ms. A did not offer employment to the complainant at the conclusion of the interview and that any impression on his part that this was the case, was a misunderstanding.
6.9 The complainant contends the respondent's requirement that candidates have a Leaving Certificate standard of education constitutes discrimination of him contrary to section 8(5) of the Employment Equality Act, 1998. I have already stated (paragraph 6.5 above) that I do not consider this an issue in the context of the selection for interview phase of the recruitment process. I must now examine whether or not it was an issue at interview stage and if so, whether or not it resulted in less favourable treatment of the complainant. I have examined a number of the application forms of candidates, some of whom were interviewed around the same time as the complainant and some who were interviewed at other times during the recruitment campaign. I am satisfied that there were candidates who did not have that level of education and were offered employment. I am also satisfied that there were candidates who were not members of the Traveller community and who did not have that standard of education, who were not offered employment. I am equally satisfied that there is at least one candidate who had third level standard of education, who was not offered employment, because she was only able to work four days a week. I am of the opinion that the respondent, whilst it had indicated a Leaving Certificate standard of education as necessary, did not apply the criteria with any degree of consistency throughout the selection process. In light of the foregoing I find that the complainant has failed to demonstrate that he was treated less favourably than another candidate in this phase of the selection process because of his membership of the Traveller community.
6.10 There is agreement between the parties that the complainant was asked at interview if he knew anybody in the organisation and he gave the name of Mr. B. The complainant states that this person is aware that he is a member of the Traveller community. The respondent furnished a written statement from Mr. B (who did not attend the hearing) in which he states that no enquiry was made of him about the complainant, by the respondent. In accordance with the decision of Henchy J in Kiely -v- The Minister for Social Welfare8 I have not taken this statement into account in reaching my decision as it would contravene the principles of natural justice. The respondent states that this question is asked of all candidates to ascertain if they are familiar with the operations of the organisation. The complainant's assertion is that question had more sinister undertones. I have examined the application forms of a number of candidates who were interviewed around the same time as the complainant, some of whom were offered employment and some who were not and I am satisfied that these candidates were asked the same question as the complainant. The complainant has adduced no evidence to show that he was treated less favourably than other candidates in this regard because he was a member of the Traveller community. However, I would draw the respondent's attention to the decision of the Labour Court in Shiels O'Donnell -v- The Department of Education and Science and the BOM St. Baithin's NS and the BOM St. Aengus NS9 in respect of the nature and content of questions which an employer might utilise to elicit information from a candidate at interview and I would suggest that employers exercise care in those circumstances to ensure that their actions do not fall foul of equality legislation.
6.11 In light of my comments in paragraphs 6.5 -6.10 above I find that the complainant has failed to establish a prima facie case that he suffered direct discrimination on grounds of membership of the Traveller community.
Allegations of Indirect Discrimination
6.12 The complainant submits that the requirement of the respondent for candidates to have a Leaving Certificate standard of education indirectly discriminates against him because this requirement can be complied with by a substantially smaller number of people who are members of the Traveller Community.
6.13 Section 31 of the Employment Equality Act, 1998 provides:
"(1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment --
(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,
(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8(1),
(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and
(d) cannot be justified as being reasonable in all the circumstances of the case,
then, subject to subsections (4) and (5), for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8, on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).".
6.14 It is a matter for the complainant to show, in the first instance, that the requirement to have a Leaving Certificate to acquire employment with the respondent operates to the disadvantage of one person over another and that in practice this requirement can be complied with by a substantially smaller number of people who are members of the Traveller community than those who are not. Once the complainant has discharged this obligation it is for the respondent to demonstrate that the requirement can be justified as reasonable in all the circumstances.
6.15 The complainant submits statistics (as detailed at paragraphs 3.5 - 3.7 above) that members of the Traveller community are seven times less likely to have attained a Leaving Certificate standard of education than members of the settled community. I note there is a serious lack of data on Travellers and their lifestyle in general and that the complainant has sought to use a range of research from a number of sources which, when combined, yields the aforementioned results. In light of the absence of any clearer data I am inclined to accept that the scenario set out by the complainant represents as accurate a picture of the situation as is possible in the circumstances. The question remains as to whether or not this imbalance would satisfy the guidelines set out by the ECJ jurisprudence referred to by the complainant. However, I do not consider it appropriate to offer any comment in this regard in the instant case because of my findings.
6.16 Section 31(1)(b) of the Employment Equality Act, 1998 provides that the practice complained of must operate to the disadvantage of the complainant as compared with a person who is not a member of the Traveller community. I have already indicated my views in this regard in paragraphs 6.5 and 6.8 above that the requirement to have a Leaving Certificate was not applied consistently by the respondent in the course of the selection process. Consequently, I find that the complainant has failed to establish a prima facie case of indirect discrimination on grounds of membership of the Traveller community.
6.17 Notwithstanding my findings above, I am concerned at a number of features of the respondent's approach to the recruitment campaign and selection process it operated in the instant case. Firstly, there is a high degree of inconsistency in the content of the newspaper advertisements. I note that Mr. C was unable to offer a reasonable explanation as to why this happened - stating that the content of the advertisement may have altered to attract different candidates. I further note that Mr. C stated the post for which the complainant applied could be carried out by a person with an Intermediate Certificate level of education who was provided with the appropriate in-house training. I suggest that it might be prudent for the respondent to review the job specification for each of its post classifications and re-evaluate the contents of same. It might also take steps to ensure that newspaper advertisements do not contain references to educational requirements that a category of individuals covered by the Act is substantially less likely to have attained, unless that level of education can be objectively justified or reasonable in the circumstances, as the case requires. Secondly, I note that there is virtually no paper records in respect of the selection process from the interview stage onward. In the event that a prima facie case of discrimination had been found it would be necessary for the respondent to show that the selection process was conducted in a manner which from free from bias. One of the avenues which employers have utilised in the past to rebut the inference of discrimination is the application of an open and transparent selection process with the relevant supporting documentation. The lack of material in the instant case would have presented the respondent with serious difficulties in this regard. I suggest therefore that the respondent might review its procedures, in an effort to ensure that they correspond with best practice in the area. This process should include the application form - the version used by the respondent in May, 2000 appears to seek information which could be argued as not necessary to assess a person's capacity to undertake a particular post. Finally, the respondent advised the complainant in writing (after the interview) that it would retain his details on file should any suitable vacancy arise at a future date. I note the respondent stated at the hearing that it is not its policy to contact unsuccessful candidates from previous phases of the campaign in those circumstances. If this is the case, I would suggest that the respondent should refrain from such statements and in the instant case, having given such an assurance, it should have acted on it, at the very least out of courtesy to the complainant. I am satisfied on balance however, that the respondent did not contact any other unsuccessful candidates of its own volition and that the complainant was not treated less favourably in this regard. In acting on the above suggestions the respondent might find it beneficial to seek the assistance of IBEC and the Equality Authority.
7. DECISION OF THE EQUALITY OFFICER
I find that the complainant has failed to establish a prima facie case of (i) direct and (ii) indirect discrimination on grounds of membership of the Traveller community contrary to the Employment Equality Act, 1998.
Vivian Jackson
Equality Officer
1 May, 2003
1 CDEE 2000/9
2 Case C-317/93 [1995] ECR1 - 4625
3 Case C-171/88 [1989] ECR2743
4 2 IR 162 [1998]
5 ES 2001/20
6 ES 2002/18
7 EDA 033
8 Supreme Court IR [1977] 267
9 AEE/01/02