EDA0817

Introduction

This is an appeal by Ms Kulwant Gill against the decision of the Equality Tribunal in her claim of discrimination on the race ground against her former employer, Clientlogic, t/a UCA+L. As is normal in determinations of this Court the parties are referred to as they were at first instance. Hence Ms Gill is referred to as the Complainant and her former employer is referred to as the Respondent.

Background.

The Complainant was born in India. She commenced employment with Gateway Computers in 1998 as a Sales Representative. After two years she moved to the position of Technical Support Representative. The business of Gateway Computers was transferred to the Respondent in November 2001. The Complainant continued in the employment of the Respondent in the role which she held prior to the transfer. In or about February 2004 the Complainant commenced working in the Respondent’s training department on a part-time basis. A full-time position as Training Assistant became available in August 2004. The Complainant applied for the post. She was unsuccessful and a person of Irish birth was appointed to the post. Believing that she was better qualified and had performed well at interview the Complainant concluded that she was the victim of discrimination on the race ground in not being appointed to the vacant post. On 19th November 2004 the Complainant referred a complaint to the Equality Tribunal pursuant to Section 77 of the Employment Equality Acts 1998 and 2004. The complaint was heard by an Equality Officer who, in a decision issued on 31st December 2007, held against the Complainant. The Complainant appealed to this Court.

Position of the parties

The respective positions taken by the parties can be summarised as follows:-

The Complainant

It is the Complainant’s case that she was the best qualified candidate for the disputed post and that she had more relevant experience than the successful candidate. The Complainant further contends that in an e-mail notifying the vacancy it was intimated that priority would be given to employees who were at risk of redundancy. She claims that she was in that category whereas the successful candidate was not. The Complainant further contends that statistics relating to the numbers of persons of Irish and non-Irish background in the workforce overall as compared to the breakdown of management grades by nationality / racial background discloses an imbalance in the latter grades in favour of Irish nationals. It was contended that whereas 60% of the workforce are not Irish only 33% of those in management grades are from countries other than Ireland. This, it was submitted, is indicative of a racial bias against non-Irish workers.

It was further pointed out that the Complainant was interviewed for the disputed post by two interviewers of Irish background and nationality. In the case of the successful candidate the interviews were differently constituted and one of the interviewers was Spanish. This, it was submitted, was further evidence of a discriminatory disposition on the part of the Respondent.

In evidence the Complainant told the Court that she holds the degree of Bachelor of Arts in Industrial Relations and Personnel Management from The National College of Ireland which included a Diploma in Training and Development. She also holds a J.E.B qualification in Teacher Training and a Training Certificate from the Institute of Personnel and Development.

The Complainant told the Court that prior to the transfer of Gateway to the Respondent she was involved in coaching new entrants to the employment in telephone call techniques. On or about January 2004 she spoke to Ms Claire O’Connor, the Training Manager with the Respondent, and asked if she could undertake work in the Training Department. Ms O’Connor agreed to facilitate the Complainant and provided her with 10 hours per week in that Department. She continued to undertake this work for approximately six months. It was the Complainant’s evidence that approximately 75% of her time in the Training Department was devoted to delivering training. The Complainant said that she undertook some administrative duties while working there but that most of those duties were undertaken in her own time or on her lunch break.

The Complainant said that her principal role within the employment was in providing technical support on the Gateway Account. The numbers engaged in this work were being reduced. Together with others employed on this account the Complainant had been advised to seek alternative employment. Consequently the Complainant regarded herself as being "at risk" of being made redundant. The Complainant gave evidence that when the disputed post was advertised the accompanying e-mail stated that priority for the post would be given to those at risk.

The Complainant told the Court that the interview for the disputed post was conducted by Ms O’Connor and a Mr Donal McGarry who was Solutions Delivery Manager with the Respondent. The interview took the form of an initial 15-minute interactive training session followed by an interview. She said that in the course of the interview the interviewers were not paying attention and were joking between themselves. Nonetheless the Complainant believed that she had performed well at interview.

The Complainant denied having been told that the interview was to take the form of a role-play or that the interviewers were assuming the role of trainees. It was put to the Complainant in cross-examination that in the course of her presentation she had used the expressions “cut out the chit-chat”, “you Europeans” and had made a reference to “stupid people” and that the use of these expressions in a training session was inappropriate. The Complainant accepted that she had used the expression “cut out the chit-chat” but stated that this was in response to the interviewers talking amongst themselves. The Complainant said that in a normal training session (which the initial part of the interview was supposed to simulate) she would have addressed trainees, who were behaving as the interviewers were, in that way. The Complainant denied a suggestion put to her in cross-examination that she “barked”the words used. The Complainant told the Court that she had no recollection of having used the other expressions imputed to her in the course of the interview. The Complainant also told the Court that after the interview she received feedback from the Personnel Officer and that no mention had been made of the expressions referred to nor was it suggested that the use of these expressions was a factor which influenced the decision not to offer her the post.

The Respondent

It was the Respondent’s case that the determinative criteria in the selection process were relevant experience in the delivery of training and performance at interview. The Respondent contended that the Complainant had limited experience in training delivery whereas the successful candidate had 16 months’ full-time experience in a training role. It was also submitted that the successful candidate had performed significantly better than the Complainant in the interview process and in the interactive training session run as part of the selection process.

The Respondent accepts the statistical analysis of its workforce by nationality submitted by the Complainant. However, it denies that this analysis discloses any element of racial bias on the Respondent’s behalf. The Respondent contended that it has a high level of turnover amongst its staff, particularly amongst its non-Irish employees. This, it was submitted, explains the imbalance indicated in the statistics. Moreover, it was submitted, the disputed post is not at management level and that any alleged under representation of non Irish personnel in management positions is irrelevant in the instant case. The Respondent denied that the race or nationality of either the Complainant or the successful candidate was a factor which influenced the filling of the disputed post.

Ms Claire O’Connor gave evidence for the Respondent. Ms O’Connor is Training Manager with the Respondent and held that position at the time material to this complaint. The witness told the Court that the Complainant approached her in or about January, 2004, and asked if she could be provided with an opportunity to obtain experience in the training function of the Respondent. Having discussed the matter with the Complainant’s manager, the witness offered her an assignment of 10 hours per week in a supporting role within the Training Department.

The witness told the Court that she had consulted relevant records for the period during which the Complainant worked within that Department and had compiled a schedule of time which the Complainant spent in the delivery of training. This schedule was put in evidence. It showed that the Complainant spent approximately 260 hours working in the Training Department but that no more than 60 of those hours were spent in the delivery of training. According to the witness the remaining time was spent in providing support in the administrative functions of the Department.

Ms O’Connor told the Court that the person appointed to the disputed post had a total of 16 months’ full-time experience in providing relevant training in the course of her employment with the Respondent. It was also Ms O’Connor’s evidence that the appointee had four separate in-Company qualifications in training and related disciplines. The witness said that formal qualifications in training were desirable but not essential for the post. The witness also told the Court that both the Complainant and the successful candidate had relevant third level qualifications. She said, however, that the formal qualifications of the candidates were of marginal influence in the selection process.

The Court was told that there were nine applicants for the post. Five candidates were short-listed and interviewed. The selection process comprised an interactive training session and an interview. The interactive training session was on the subject of customer care. It was conducted in the form of a role-play in which the interviewers assumed the role of participants in training.

The witness told the Court that she was the decision maker in the selection process but in line with normal practice within the Respondent she was supported in the process by another member of management. The witness participated in the selection process for all candidates but different members of management accompanied her depending on their availability.

According to Ms O’Connor the Complainant used inappropriate language in the course of her presentation in the interactive training session. This included telling the putative participants to “cut out the chit chat” and referring to them as “you Europeans”. The witness also said that at one stage in the course of the session the Complainant answered a question put to her by saying, “when you have someone stupid in the group”. This, the witness said, was inappropriate language in a training session and was taken into account against the Complainant.

The witness told the Court that the successful candidate was more impressive in terms of her ideas for improving the effectiveness of the training function and the initiative which she demonstrated in the selection process. Ms O’Connor had no doubt as to who was the better candidate for the post. She told the Court that she evaluated the candidates entirely on their relative merits and found the successful candidate the most suitable for the post.

The witness told the Court that there was no marking system used in the competition but she did take contemporaneous notes, which were put in evidence. The other interviewer, Mr McGarry, did not take separate notes of the interview. The witness said, however, that she recorded her comments on the Complainant’s performance in consultation with Mr McGarry.

Ms Ailbhe Kelly gave evidence in relation to an e-mail sent to advise prospective candidates for the disputed post that priority would be given to those “at risk”. Ms Kelly is employed in the Human Resources Department of the Respondent. She was not the author of the e-mail. She told the Court that the expression “at risk” was understood to refer to an employee who had been expressly informed that the requirement for their job was to cease. The witness said that the Complainant was not in that category. The witness also told the Court that it was intended to provide those at risk with priority in selection for interview only. She said that candidates in that category were not given preference for placement in alternative positions over better qualified candidates.

In cross-examination the witness was unable to say how many of the candidates selected for interview or how many of those not selected for interview with respect to the disputed post were in the “at risk” category.

The Law

Directive 2000/78/EC provides that, in respect to employment, there shall be no discrimination whatsoever on grounds,inter, alia,of race. The Act gives effect to the Directive in Irish law and must therefore be interpreted and applied so as to achieve the objective envisaged by the Directive. Thus if it is established that the race of either the Complainant or that of the successful candidate was anything other than a trivial influence in the selection process the complaint of discrimination will have been made out. (See dictum of Peter Gibson LJ to that effect inWong v Igen Ltd and othersIRLR 258).

Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination inMitchell v Southern Health Board[2001] ELR 201.That test requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged, and the Court is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. It is, however, well settled that where a less qualified candidate for employment is appointed in preference to a more qualified candidate, coupled with a difference in gender, aprima faciecase of unlawful discrimination arises. (See dictum of Lord Lowery LCJ inWallace v South Eastern Education and Library Board[1980] IRLR 193, in which this principle was first enunciated). By parity of reasoning the same principle applies where the claim arises on any of the other proscribed grounds including, as in the instant case, race.

In Determination EDA077,O’Halloran v Galway City Partnershipthis Court considered the scope which should be ascribed to the principle enunciated inWallace. Here the Complainant was an unsuccessful candidate for appointment to a position for which there were only two applicants. The successful candidate was some 20 years younger that the Complainant, who alleged discrimination on the age ground. The Complainant had attained certain skills in the course of her employment which the successful candidate did not possess. She sought to rely on her superior qualifications in support of her complaint of discrimination. The Respondent contended that the skills relied upon by the Complainant were not required for the disputed post. In holding that the rule inWallaceonly comes into play where there is a disparity in qualifications which are required for the post in issue, the Court said this: -

• Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (seeWallace v. South Eastern Education and Library Board[1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.

The facts contended for by the Complainant

The primary facts relied upon by the Complainant in grounding her claim are summarised in her written submission to the Court as follows: -

�“The Complainant was the best qualified candidate for the vacant post,

The qualifications of the candidates.

The Court accepts that the determinative criteria for the post was experience in the delivery of training and performance at interview. While the Complainant has excellent third level qualifications they were not a requirement for the disputed post. In any event, it appears from the CV of the successful candidate that she too had a third level qualification of at least equivalent value. However, the Court is satisfied on the evidence that the Respondent did not regard the academic qualifications of candidates as particularly relevant in determining suitability for the disputed post. Consequently they were not given any particular weight in the selection process. This was the clear import of the evidence of Ms O’Connor, which the Court accepts, and it is also evident from the absence of any reference to academic qualifications in the published job description and requirements of the post. Consequently it is not appropriate for the Court to take the respective academic attainments of the candidates into account in deciding if the burden of proof transfers to the Respondent.

The experience of candidates.

The evidence disclosed that experience in training delivery was a determinative factor in deciding who would be appointed to the disputed post. On the evidence adduced concerning the relative experience of the Complainant and that of the successful candidate, the Court is not satisfied, as a matter of probability, that the Complainant’s experience of training delivery could be superior to that of the successful candidate. Even if the Complainant’s evidence in relation to her experience were to be taken at its height, it did not surpass that of the successful candidate.

Priority for those at risk

The Complainant contends that she was at risk of redundancy because the account on which she worked was being scaled down. She claims that the Respondent had indicated that those in that category would get priority in filling the disputed post and that the successful candidate was not at risk. The witnesses for the Respondent told the Complainant was not in the at risk category and that the commitment was to give at risk employees priority in selection for interview.

In relevant part the e-mail circulated in relation to the disputed post stated as follows: -

• “Please note employees who have been identified as at risk due to downsizing of accounts will be given first priority for these roles”

Racial imbalance amongst management grades

In employment equality jurisprudence statistics are commonly deployed as an evidential tool to establish that a policy, practice or criterion in relation to employment is indirectly discriminatory. This classically arises where it is alleged that those in a certain category are placed at particular disadvantage in relation to employment by application of the impugned policy, practice or criterion. In this case the discrimination alleged is direct. The statistics relied upon are advanced as evidence of a racially discriminatory disposition on the part of the Respondent.

Statistics such as those relied upon by the Complainant can be of probative value in raising an inference of covert discrimination or the presence of inbuilt or unrecognised bias. However, it is always a matter for the Court, having regard to all the circumstances of the case, to determine if the statistical evidence adduced provides a sufficient basis upon which such an inference should properly be drawn (see the decision of this Court inIMPACT v Irish Aviation Authority[2000] ELR 29.)

It is not denied that on a pro rata basis non-Irish employees are under-represented in management grades. The post in issue in this case is not at management level. On that account alone the statistics proffered are of limited relevance. The probative value of these raw statistics, for the purpose for which they were proffered, is also limited by the inherent possibility that they could be influenced by benign or purely fortuitous factors.
The Respondent claims that the racial balance relied upon is because of a high turnover amongst employees who are not Irish. It submitted that the average length of service of those from countries other than Ireland is relatively short and that this explains the apparent disparity in racial mix as between management and other grades. The numbers applying for promotional posts from each category could also influence the racial balance at higher levels.

In the circumstances of this case the Court does not accept that the statistical evidence relied upon by the Complainant is of sufficient significance to raise an inference of discrimination.

The interview process

The Complainant relies upon the lack of racial balance amongst the interviewers. She also placed some reliance on the accepted fact that the second interviewer did not maintain notes of the interview.

The process of interview employed in this case was somewhat unusual. Ms O’Connor participated in all five interviews conducted. But she was accompanied by different colleagues at different interviews. Normally, where a post is being filled by competition, it is manifestly necessary to have the same group assess all candidates so as to ensure that their relative merit is evaluated on the same standard.

In this case it is clear from the evidence that Ms O’Connor was in reality the sole decision-maker in the selection process. The role of the second interviewer was merely advisory. The Court was also told that while the second interviewer did not take notes of the interview, the comments reduced to writing by Ms O’Connor were agreed with her colleague.

It is also accepted that both interviewers in the case of the Complainant were Irish while in the case of the successful candidate the second interviewer was of Spanish nationality. The Complainant contends that she was disadvantaged in being interviewed by two people of Irish nationality. It was also suggested, implicitly at least, that the successful candidate, who is Irish, was advantaged by being interviewed by one Irish and one non-Irish person. It seems to the Court that the conclusion contended for by the Complainant does not follow from this outcome.

While the maintenance of an appropriate balance in the make-up of interview groups is always desirable the Court is not satisfied, in the circumstances of this case, that the absence of balance complained of is a fact from which discrimination may be inferred.

Conclusion

For all of the reasons set out in this determination the Court is not satisfied that the Complainant has established a prima facie case of discrimination. Accordingly her claim cannot succeed.

The decision of the Equality Officer is affirmed and the appeal is disallowed.



Signed on behalf of the Labour Court



Kevin Duffy
13th August, 2008______________________
CONChairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.