DEC-E2005-012 Full Case Report

Mr. Tom O'Connor vs Lidl Ireland GmbH (Represented by O’Rourke Reid Solicitors)

1. DISPUTE
   1. The dispute concerns a claim by Mr. Tom O’Connor against Lidl Ireland GmbH that he has been discriminated against on the grounds of age in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when he was not invited to attend for interview for the position of District Manager.
      
2. BACKGROUND
   1. The respondent advertised for District Managers in the Irish Examiner on 5th July, 2002. In its advertisement the respondent stated that the ideal candidate should be a graduate with not more that 2-3 years experience in a commercial environment. The complainant applied for the position of District Manager but was not called for interview. He was informed by the respondent that another candidate was more suitable for the position. It is the complainant’s contention that the requirement to have no more than 2-3 years experience in the commercial environment is geared towards the recruitment of younger people and is, therefore, discriminatory on the grounds of age. The respondent denies that this requirement is discriminatory on the grounds of age.
   2. Consequently the complainant referred a complaint under Section 7 of the Employment Equality Act, 1998 to the Director of Equality Investigations on 30th July, 2002. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 7th October, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A joint hearing took place on 21st September, 2004 Additional information was received from the parties and the final information was received on 23rd February, 2005.
      
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. According to the complainant the respondent advertised for District Managers in the Irish Examiner on 5th July, 2002. In the advertisement the respondent stated as follows:
      
      “The Ideal Candidate should:
      • Be highly motivated and flexible
      • Be ambitious and mobile
      • Have a high interest in retail, be results orientated and work well under pressure
      • Have excellent communication, interpersonal and leadership skills
      • Be a graduate, ideally with not more than 2-3 years experience in a commercial environment
      • No retail experience required.”
      The complainant states that he responded to the advertisement by way of application for the position in which he outlined his 5½ years sales experience in his own business and his significant and job relevant educational background. As part of his application he included a copy of his Curriculum Vitae which outlined his work experience from 1972 to date (31 years). The complainant is 51 years old.
   2. According to the complainant he received a letter dated 19th July, 2002 from the respondent in which it was stated that the respondent “had decided not to proceed with your application”. The complainant was, therefore, not called for interview. It is the complainant’s contention that the wording of the job advertisement was designed or might reasonably be understood as indicating an intention to exclude experienced (i.e. middle aged or older) applicants. Pursuant to Section 85(1)(d) of the Employment Equality Act, 1998 the complainant wishes to complain that a publication or display has been made in contravention of Section 10 of the 1998 Act. The complainant further contends that this amounted to discrimination on the grounds of age. In this regard the complainant cites the Equality Officer decision in the case of the Equality Authority v Ryanair .
      
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. The respondent confirms that it placed an advertisement in the Irish Examiner in July, 2002 for the position of District Manager and that the complainant applied for the position. The respondent notes that this was the third occasion on which the complainant had applied for vacant positions in the respondent organisation. In July, 2001 the complainant applied for the position of District Manager and on this occasion he was interviewed and subsequently advised that he was unsuccessful in his application. In December, 2001 the complainant applied for a position as Deputy Store Manager with the respondent organisation and again was unsuccessful in his application. Following his rejection after his third application the complainant referred a complaint of discriminatory treatment in relation to access to employment on the grounds of age to the Equality Tribunal.
   2. According to the respondent the basis for this complaint by the complainant is his belief that advertisement “defines a circumstance that could be filled only by a young person to the exclusion of an older person” and that “it is designed to discourage older persons applying for the position”. It is the respondent’s submission that it is an equal opportunities employer and has never discriminated against any applicants or employees on the basis of age or any other discriminatory grounds. The respondent states that the applicants selected for interview for vacant positions of District Manager/Store Manager were selected on the basis of the information regarding both their academic qualifications and skills in the commercial field as stated in their CVs. The respondent notes that the specification for the ideal candidate is in no way intended to be understood as a list of requirements for the position. According to the respondent the ideal candidate is simply a guideline for applicants and is not intended to be exclusive to a certain age bracket or adversely affect any applicant and by doing so be discriminatory in nature. The respondent states that the advertisement was intended to appeal to a broad spectrum of job seekers without being exclusive to those with numerous years of commercial experience as opposed to those with relatively no experience. According to the respondent it welcomes applications from candidates with various levels of experience and qualifications gained and selects candidates for further processing on the basis of merit and the standard of all applications received for the position advertised. The respondent states that the selection and interviewing process it uses is in accordance with the best practice in Human Resource Management. It is the respondent’s contention that the advertisement was not in itself discriminatory and that the selection and interview process were not discriminatory and were in accordance with best practice.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of age within the meaning of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 when he was not invited to attend for interview for the position of District Manager. In making my decision in this claim I have taken into account the submissions, both written and oral, from the parties.
   2. There are two aspects to this claim namely discriminatory advertising and discriminatory treatment in the selection process. In relation to the former I note that the complainant cannot refer a claim to the Equality Tribunal regarding an alleged discriminatory advertisement. Under Section 85 of the Employment Equality Act, 1998 it is the Equality Authority who can refer a claim to the Equality Tribunal about an alleged discriminatory advertisement. I note that the complainant previously referred a claim to the Equality Tribunal, one aspect of which related to an alleged discriminatory advertisement. In the Equality Officer decision the Equality Officer clearly stated that he had no jurisdiction to deal with a complaint about an alleged discriminatory advertisement which had not been referred by the Equality Authority. I note that the complainant in this earlier case had received this Decision prior to making his submission in the current claim. The matter of an individual referring a claim of an alleged discriminatory advertisement was also addressed by another Equality Officer and in her Decision (which was upheld by the Labour Court ) she examined the relevant provision of the 1998 Act, the provisions of its predecessor (i.e. the Employment Equality Act, 1997) and the Dáil Debates in relation to the Employment Equality Bill, 1997 (which was subsequently enacted as the Employment Equality Act, 1998) and she stated that “it is clear … that the intention of the legislature is that such claims may not be referred by individuals”. On the basis of the foregoing I am satisfied that an individual (including the complainant) cannot refer a claim regarding a discriminatory advertisement to the Equality Tribunal.
   3. The complainant applied for the position of District Manager in one of Europe’s largest and fastest growing retailers on foot of a job advertisement in a national newspaper dated 5th July, 2002. The complainant met the requirement of being a graduate but held that the requirement that the candidate should “be a graduate, ideally with not more than 2-3 years experience in a commercial environment” was discriminatory on the grounds of age on the basis that the respondent was in fact seeking younger persons to fill the position. This allegation of discrimination was based solely on the respondent’s job advertisement for the position and the complainant had no other evidence to support his allegation.
   4. At the hearing of this claim the respondent stated that it is an equal opportunities employer and it does not discriminate on the grounds of age. The respondent noted that it had previously (in July, 2001) invited the complainant to attend for interview for the position of District Manager on the basis of the same job advertisement as that used in the competition at issue in this claim (i.e. July, 2002). On that occasion the complainant was unsuccessful in his application. I am satisfied that there is insufficient evidence to support the contention that the complainant has been directly discriminated against on the grounds of age when he was not invited for interview for the position of District Manager.
   5. The issue which needs to be addressed is whether this requirement to have “not more that 2-3 years experience in a commercial environment” is indirectly discriminatory in terms of Section 31 of the Employment Equality Act, 1998. The respondent confirmed to me, at the hearing of this claim, that it is unable to provide details of the numbers of persons who applied as a result of this advertisement as it frequently advertises for District Managers and job advertisements do not specify a date by which applicants must respond. On receipt of applications these are assessed by two managers from a pool of senior managers based in Headquarters on a weekly basis. It is not necessarily the same two managers who assess all the applications. According to the respondent applications are assessed and those candidates who are short-listed are called for interview. Candidates called for interview are selected on the basis of information provided on their academic qualifications and skills in the commercial field. Interviews can be held on a weekly basis. The respondent noted, in its response to the complainant’s request for information, that the wording of its job advertisement is hoped to appeal to a broad spectrum of active job seekers.
   6. The respondent noted that it is expanding its operations at a rapid pace and foresees the opening of four new stores every month from September to Christmas, 2004. While it has 48 District Managers employed as at the date of this hearing, this will increase because of expansion plans. According to the respondent the average age of the current District/Store Manager is between 22 and 45 years of age. The respondent confirmed that all applicants are asked to complete an application form which I note requires them to complete their date of birth.
   7. Following the hearing of this claim I asked the respondent to provide me with details about the age, experience in a commercial environment and whether called for interview of all other applicants for the position of District Manager in the period from 1st July to 31st December, 2002. In response the respondent stated that, following an exhaustive search of its records, it was unable to retrieve the CVs and application forms of the applicants for District Manager positions for this period. According to the respondent this information was destroyed in December, 2002. I note that, accompanying this response, the respondent had included a copy of the complainant’s application form for the position of District Manager in August, 2001 and the cover letter and CV which the complainant sent to the respondent in respect of the District Manager position in July, 2002. I further note that the destroying of other applications took place after the complainant had referred his complaint to the Equality Tribunal and the respondent had been notified of same. By destroying this information, while the respondent was aware that it had a claim of alleged discrimination against it, is sufficient to raise an inference of discrimination on the grounds of age as alleged.
   8. I then sought from the respondent similar details in respect of applications for the position of District Manager in the period from 1st July to 1st December, 2004. While these applications were not for the same period of time as when the complainant applied I considered that, in the absence of information for 2002, this information, while of limited value, may assist me in my decision in this claim.
   9. The respondent provided me with details of all applicants between the beginning of July, 2003 and the end of December, 2004. I note that the respondent stated that it could not confirm if these applicants had responded to job advertisements which also contained the requirement ‘that applicants should be graduates with ideally not more than 2-3 years experience in a commercial environment’. In the circumstances there is little value to these statistics as it is unclear that similar comparisons can be made. The following observation on the statistics is noteworthy. The respondent could not provide the date of birth/age or the number of years of commercial experience of all the candidates. However it did provide these details for 778 applicants. Of these 778 applicants, 213 were called for interview. While 101 of these applicants (i.e. almost 50%) had more than 2-3 years experience in a commercial environment only three of these were over 40 years of age (i.e. 41 and 42) and 1 applicant was 40 years old. The complainant, at the time of application, was 50 years of age and I note that no applicants of a similar age were called for interview. In fact there were 82 applicants of the age of 40 and over who were not called for interview.
   10. Following the hearing of this claim I invited both parties to address the issue of the requirement for candidates “ideally to have not more that 2-3 years experience in a commercial environment” in the context of indirect discrimination in accordance with Sections 28 and 31 of the Employment Equality Act, 1998 and having regard to the findings of the Equality Officer in the Decision of Brendan Noonan v Accountancy Connections . In response the complainant contended that he was indirectly discriminated against by the respondent on the grounds of age and the respondent re-iterated it original argument that applicants are selected for interview on grounds of merit regarding both their qualifications and skills as outlined in the CV and application form. The requirement of being a graduate with no more that 2-3 years experience in a commercial environment is in no way intended to be understood as a requirement of the job. According to the respondent the ideal candidate is simply a guideline for applicants and is not intended to be exclusive of a certain age bracket of adversely affect any applicant. Rather it is intended to appeal to a broad spectrum of job seekers without being exclusive to applicants with numerous years of commercial experience as opposed to those with relatively no experience.
   11. The tests for indirect discrimination have been outlined in detail in the Noonan Decision. Suffice it to say that the complainant has established a prima facie case of indirect discrimination as the requirement to have not more than 2-3 years experience in a commercial environment operated to his disadvantage as compared with other younger applicants, especially those in their twenties or early thirties. The statistics set out in paragraph 5.9 would bear this out if applicants responded to job advertisements which contained this requirement. Having established a prima facie claim of indirect discrimination it is for the respondent to show that the requirement can be justified as being reasonable in all the circumstances of the case. The respondent has said that applicants are invited to interview on the basis of merit having regard to the qualifications and skills set out in their application forms and CVs. However there is no evidence suggesting objective or transparent merit criteria which is clearly unrelated to age. In the circumstances I find that the respondent has failed to show that the requirement that a candidate should “ideally have not more than 2-3 years experience in a commercial environment” is not indirectly discriminatory against the complainant on the grounds of age.
       
6. DECISION
   1. In view of the foregoing I find that Mr. O’Connor cannot refer a claim about an alleged discriminatory advertisement to the Equality Tribunal. Section 85 of the Employment Equality Act, 1998 provides for the referral of a discriminatory advertisement by the Equality Authority.
   2. I further find that Mr. O’Connor was indirectly discriminated against on the grounds of age in relation to the selection process when he was not invited for interview as District Manager in Lidl Ireland GmbH.
   3. In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order Lidl Ireland GmbH:
      1. to pay Mr. O’Connor the sum of €5,000 by way of compensation for the breach of his right to equal treatment under the Employment Equality Act, 1998 and for the stress suffered as a result of the discriminatory treatment;
      2. to refrain from specifying, as a requirement, a maximum limit in relation to commercial experience in all future competitions;
      3. to remove the requirement to specify date of birth on job application forms;
      4. to retain information on recruitment competitions for at least 12 months after the competition process is complete so as to be able to produce evidence in the event of an allegation of discrimination in the process;
      5. to hold identifiable recruitment competitions so that in the event of an allegation of discrimination it would be possible to produce evidence on that competition as opposed to having to provide evidence for a significant period of time as happened in this case;
      6. to maintain a clear record of the objective criteria applied in deciding not to call applicants for interview.