FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : ICTS ( UK ) LIMITED (REPRESENTED BY DENIS MCSWEENEY SOLICITORS) - AND - MAGDI AHMED (REPRESENTED BY FREE LEGAL ADVICE CENTRES) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Decision of the Office of Director of Equality Investigations(ODEI) DEC-E2003-023.
BACKGROUND:
2. The background to this case is set out in the Equality Officer's Decision (details with the Court). The Equality Officer, in her decision, which issued on the 12th June, 2003, found that the complainant was not discriminated against contrary to the terms of the Act.
On the 21st July, 2003 the complainant appealed the Equality Officer's Decision to the Labour Court. He alleges that the Equality Officer ignored a significant amount of relevant evidence in coming to her conclusion that the burden of proof should not shift to the employer and in finding that the complainant was not discriminated against on grounds of race and religious belief. A Court hearing was held on the 9th December, 2003.
DETERMINATION:
The complainant is a Sudanese national and is a member of the Muslim faith. The respondent is a pan European company, based in the United Kingdom, which is engaged in the provision of security services to certain airlines operating out of Dublin Airport. The complainant applied for a position as an aviation security agent with the respondent at Dublin Airport. He completed an application form and attended for interview on the 12th May 2002. He claims that at the interview he was subjected to questions and comments which were disparaging of his ethnic origin and religious beliefs.
Subsequently, the complainant referred a complaint to the Director of Equality Investigations (the Equality Tribunal) on the 4th December 2002 pursuant to Section 77 of the Employment Equality Act 1998 (the Act), alleging discrimination on the grounds of race and religious ground.
An Equality Officer of the Equality Tribunal investigated the complaint and in her report dated the 12th June 2003 she found that it was not well founded. Against that decision the complainant appealed to this Court.
The Evidence:
The submission of the parties, which was supported by oral evidence, can be summarised as follows:
Complainant’s Case
The complainant came to Ireland as a refugee and was afforded refugee status. He registered for employment with FAS and was directed by them to the respondent who was seeking to recruit security agents. He arrived for interview at 3pm on the 12th May 2002.
The claimant was asked to complete two application forms. The first form sought, inter alia, details of the applicant’s place of birth and passport nationality. The second form sought information concerning the ethnic origin of applicants. On this form the complainant described his ethnic origin as Black African.
The complainant contends that during the course of his interview he was asked if he was a Muslim, to which he replied in the affirmative. The interviewer then referred to the Lockerbie bombing and asked the complainant if he had heard of this atrocity. He replied that he had, and that it had happened when he was seventeen years of age. The complainant gave evidence that the interviewer then asked him if he was from Sudan and commented on the political situation in that country. The complainant was then asked about the circumstances in which he came to Ireland. He told the interviewer that he had entered the country without a passport and had sought refugee status, which was granted to him. He told the Court that the interviewer then made comments to the effect that if he was appointed to the vacant position, he would be required to deal with people who were trying to enter the country illegally and that his own experience might make him unsuitable for such a role.
He was asked about a travel permit with which he had been issued when granted refugee status. He produced the document and handed it to the interviewer who made further disparaging remarks of a racist nature in relation to the document. The complainant told the Court that at that point he became angry, terminated the interview and left the premises. He said that the interview had lasted approximately one hour, he also said the duties and conditions attached to the position were described by the interviewer in unattractive terms and the complainant felt that this was for the purpose of dissuading him from pursuing his application for the post.
The complainant told the Court that he later contacted FAS to complain at his treatment by the respondent and that he understood that FAS had been in contact with the respondent in the matter.
Respondents Case:
The respondent told the Court that the selection process required candidates to complete an application form prior to interview. There is an additional form called “additional information request”, which is completed at the discretion of the interviewee. The latter form requests information on gender, ethnic origin and disabilities. The purpose of this form is to ensure that the Company has available to it data by which it can monitor its equal opportunities policy. The equal opportunities policy provides that when ever possible more than one person must be involved in selection interviews. In the instant case the interview was conducted by one interviewer, Mr John Corcoran. They said that this arose in circumstances where a second interviewer who was to have participated was not available. As a result of this the interviews, which had been planned for the day in question, had been cancelled but it had not been possible to contact the complainant so as to inform him of this cancellation. The complainant presented for interview on the day and Mr Corcoran felt it would have been unreasonable to turn him away. For this reason he decided to conduct the interview alone.
Mr Corcoran told the Court that at the commencement of the interview he provided the complainant with background information about the Company. This, he said, was standard practice at all interviews. In that context the complainant was told that the Company had been established following the Lockerbie bombing which had highlighted the need to provide enhanced security services to the aviation industry in order to limit the risk of terrorist attacks.
As is normal practice the claimant was given details of the duties of the job, the rate of pay and the hours of work, which involved a 6am start. Mr Corcoran said that it was his practice to emphasise the requirement for a 6am start so as to ensure that the job applicant was in a position to confirm that he or she could meet that requirement. The complainant was also asked about his previous employment.
The complainant was questioned in relation to his passport details and as to his status in Ireland. Again, these question are asked of all job applicants. This information is necessary so as to ascertain if applicants are legally entitled to take up employment or if they require a work permit. It is also necessary for the purpose of security checks, which must be carried out on all candidates so that they can obtain security clearance from the airport authorities.
The complainant presented his travel documents and accompanying green card, which confirmed his refugee status and his entitlement to work in Ireland. Mr Corcoran told the Court that the interview lasted no longer than 15 minutes. He denied asking the complainant if he was a Muslim. He told the Court that he was unaware of the complainant’s religion until it was highlighted at the hearing before the Equality Officer. Mr Corcoran further denied that he had questioned the complainant about the political situation in Sudan. He told the Court he knew nothing about this topic.
Mr Corcoran told the Court that there were some communication difficulties during the interview and that he and the complainant had difficulty understanding each other. According to Mr Corcoran the complainant became frustrated and agitated on this account. At one point he asked to speak to Mr Corcoran’s supervisor. Mr Corcoran explained that he was the supervisor. The applicant produced a bundle of papers, which he indicated were all letters of rejections from job applications which he had made to other employers. The complainant asserted that all Irish employers were racist and that he was withdrawing his application. The complainant then left the interview and took his completed application forms with him. Mr Corcoran told the Court that given the manner in which the interview terminated and his belief that the complainant had withdrawn his applicant he did not complete the normal interview assessment form.
Mr Paul Hunter who is manager of the UK legal and compliance division of the respondents also gave evidence to the Court. He confirmed that he had trained Mr Corcoran in the approach to be adopted at interviews and had designed the forms used by applicants. He said that at the material time it was not the practice of the respondent to have a predetermined set of questions to be used at interviews. However, since the present complaint was made the situation has been changed and they now have a formal set of interview questions to be asked by all interviewers.
Mr Hunter said that the Company had recruited employees from a wide range of ethnic backgrounds and religious beliefs (details of the ethnic origin/religious beliefs profile of the Company’s workforce were provided to the Court). He told the Court there are approximately 100 employees at the Dublin depot and while the overwhelming majority are Irish approximately 10% of the workforce is made up of Non-Europeans (details were provided to the Court).
Mr Hunter said that in his experience an interview would never extend beyond 30 minutes and was usually of a shorter duration. He also accepted that some years ago the Company was held liable for racial discrimination in the UK. He said that this arose in circumstances in which the Company had been held to be vicariously liable for the conduct of one of its employees. Because of this the company is now particularly conscious of the need to observe best practice in relation to equal opportunities in recruitment.
Burden of proof.
Both parties made submissions to the Court on how the burden of proof should be allocated in this case.
It is now the accepted practice of this Court that in all cases involving discrimination the probative burden will shift to the respondent in circumstances where the complainant establishes a prima facie case of discrimination.
The test normally used in determining when and in what circumstances the burden of proof shifts to the respondent is that formulated in the case ofMitchell v Southern Health Board [2001] ELR 201. This test provided that the complainant must first prove the primary facts upon which they rely in asserting discrimination. If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.
This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. These regulations provide that the probative burden shifts where the complainantestablishes factsfrom which discrimination may be presumed. The wording used in the regulations, which is derived from Directive 97/80 EC (The Burden of Proof Directive), is now replicated in Article 8 of Council Directive 2000/43 on Equal Treatment between Persons Irrespective of Racial or Ethnic Origin.
InJayasena v R [1970] AC 618Lord Devlin observed that the obligation to adduce a prima facie case in relation to a fact in issue can be satisfied by such evidence as, if believed and left uncontradicted or unexplained, could be accepted by a jury as proof, or by adducing enough evidence to suggest a reasonable possibility of the existence of the fact in issue. This is authority for the proposition that in normal circumstances a prima facie case can be established on credible evidence which may stop short of constituting proof on the balance of probabilities of what it asserts. However, a strict construction of the words used in the Burden of Proof Directive indicates that a prima facie case of discrimination must be established by reliance upon facts which are either admitted, or proved by the complainant.
Whilst the Mitchell test is generally apposite in applying that procedural rule there are situations which suggest that it may not be universally appropriate. Situations frequently arise, as in the present case, in which the discrimination alleged consists of discriminatory questions or comments made in the course of a job interview. Where the interview is conducted on a one-to-one basis the only evidence which the complainant may be realistically able to adduce will be his or her own uncorroborated testimony. The complainant’s difficulties may be further compounded, again as in the present case, by the absence of any contemporaneous interview notes or other records.
In cases such as this what is ultimately in dispute between the parties is whether or not the discriminatory remarks alleged were actually uttered. This is what is often technically referred to as the fact in issue. Where the primary facts upon which the claim of discrimination is based are also the fact in issue, the application of the Mitchell test places the entire probative burden on the complainant. This may impose a higher standard of proof on the complainant then is envisaged by the law. In these type of cases it could cogently be argued, on the basis of the case law of the ECJ, that the burden on the complainant is an evidential one which could be discharged by giving credible (but not necessarily conclusive) sworn testimony of what is alleged. This approach, while attractive, may not be entirely consistent with the language used in the relevant Directives.
In this case, however, the Court does not consider it necessary or desirable to express a concluded view on this question as there are admitted extraneous facts which have evidential value relevant to what is alleged by the complainant.
It is common case that the complainant became agitated in the course of the interview, that he sought to speak to the interviewer's supervisor and then that he then terminated the interview abruptly. This is evidence pointing to the occurrence of something untoward although both parties have totally contradictory versions as to its cause. When taken in the context of the evidence as a whole, the Court would not consider these facts as sufficient to establish a prima facie case of discrimination in this case. They may, however, be sufficient when combined with the complainant’s own testimony if the Court were to be satisfied that he is a reliable witness.
Conclusions.
In the circumstances of this case the Court should first consider if the complainant's evidence is credible. In that regard the Court finds that the complainant’s recollection of the interview process is, to say the least of it, deficient. The Court does not accept that the interview process could have lasted for one hour, as is the complainant’s recollection. Moreover, the Court does not accept that it was suggested to the complainant that because he had originally entered the country illegally he would be disinclined to prevent others from so doing. The duties attaching to the post for which the complainant applied did not involve determining who could or could not enter the country. It is also of considerable significance that this issue was not raised by the complainant before the Equality Officer or on any previous occasion. Finally, the complainant told the Court that he had contacted FAS after the interview and had complained at the manner in which he had been treated. This was not confirmed in evidence.
In the circumstances the Court does not accept that the complainant’s evidence goes far enough to establish a prima facia case. Accordingly his case cannot succeed.
Determination.
The decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
26th January, 2004______________________
LW/LWChairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.