EDA0912

The Position of the Parties :

The Complainant’s case
The Complainant’s case can be summarised as follows: -

The Complainant told the Court that on the day after commencing employment, she met with the Human Resources Manager of the Respondent. During this meeting the Human Resources Manager asked for her date of birth as she was assisting the complainant in filling out a form. The Complainant told the Human Resources Manager that she was born in 1970. The Human Resources Manager wrote 1960 on the form and the Complainant had to correct her. This, the Complainant contends, showed an inordinate interest in her age, which was already given in the CV which she had furnished to the Respondent.

On 5th August the Complainant was dismissed with one week’s notice. She was told that the reason for the dismissal was that her knowledge of English was insufficient. She maintains that her English was at the same level as her other colleagues. The Complainant submits this was not the real reason. She maintains that the real reason was because she was older than many of her work colleagues.

The Complainant told the Court that after she had been dismissed various people commented to her that her English was more than adequate for the role. The Complainant submitted a certificate obtained in April 2005 from Eden School of English, Dublin which classifies her level of English as intermediate standard.

According to the Complainant, on the evening of her dismissal there was a Company barbecue. At the barbecue the Complainant alleges that her Senior Project Manager gave her a disdainful look. She further alleges that over the weekend after the barbecue, and following her dismissal, she overheard a conversation between two colleagues, Mr. C and Mr. D with whom she also shared a house. According to the Complainant Mr. C said to Mr. D words to the effect ‘she has been dismissed; she was too mature’. The Complainant alleges that Mr. C said ‘Ms. E says that she is over 40, but her birthday was last week and she turned 35’.

The Respondent
The Respondent’s case can be summarised as follows: -

The Respondent denied that the Complainant had been dismissed because of her age or that she had been subjected to harassment, as alleged or at all. The Respondent maintains that good English is a necessity for the role which the Complainant was employed to perform. The Complainant’s curriculum vitae describe her reading, written and verbal English as excellent and good. The Respondent submits that this was not its experience.

Regarding the confusion over the Complainant’s date of birth, the Respondent submits that the Complainant was required to fill out an employee start form which included details such as PPS number, date of birth, paypath details etc. According to the Respondent the Complainant had difficultly in filling out this form, as her English was not good enough. The Human Resources Manager filled out most of the form for the Complainant. It is accepted that the Human Resources Manager misheard the Complainant when she gave her date of birth and an erroneous entry was initially entered in the form. It is denied, however, that this is indicative of a discriminatory disposition.

The Respondent submits that performance issues became apparent with the Complainant’s work. The Senior Engineer to whom the Complainant reported sent an email highlighting his concerns to his supervisor on 27th July 2005. The email stated ‘...It is also my impression that her spoken English is not great and she seems to have difficulty following my general instructions to the team’. This email was forwarded to the Human Resources Manager.

The Respondent maintains that there was no improvement in the Complainant’s performance. It was then decided to terminate the Complainant’s contract of employment. The Complainant was dismissed on 5th August 2005 with one week’s notice. The Complainant did not voice any concerns or objections at this meeting.

The Respondent denies that the Complainant was ever harassed during her employment by any member of the Company or that the Complainant made any allegations of same during or within six months of the termination of her employment.

The Respondent rejects the allegation that the Complainant was discriminated against on the grounds of age. It states that is not in the Respondent’s interest to be ageist in the recruitment and retention of employees.

Evidence:
Evidence was adduced from two witnesses on behalf of the Respondent.

Mr Shane Loftus gave evidence. At the material time he was Senior Software Engineer with the Respondent. As such he was responsible for the project on which the Complainant was employed. The witness gave evidence as to the requirements of the project and its importance to the Respondent’s business. He said that it involved developing computer games and the Complainant was expected to translate the instructions for the games into Spanish. This involved a high level of competence in English.

The witness told the Court that he became concerned that the Complainant did not have sufficient competency in the English language to undertake the tasks to which she was assigned. He reported this matter to his superior. The witness told the Court that the Complainant’s age was not a matter of concern to him.

Ms Maeve Bleahene gave evidence. Ms Bleahene is Human Resources Manager with the Respondent. She gave evidence in relation to the circumstances in which the Complainant came to be recruited by the Respondent. The witness told the Court that the project was highly sensitive and required the observance of security procedures in relation to its operation. The witness said that the project was for a particularly important customer and that it was imperative that it be undertaken to the highest quality.

The Court was told that the Complainant was recruited through an agency that specialises in supplying staff with linguistic skills. The Complainant was employed on the understanding that her command of English was adequate for the project that she was required to undertake.

Ms Bleahene told the Court that she received the Complainant’s CV from the agency. While it recorded the Complainant’s date of birth this was a matter of no importance to her and she did not take any particular notice of this information. According to the witness it soon became apparent that the Complainant did not have a good command of English. The witness said that soon after she commenced employment the Complainant was required to complete a work related form. She had difficulties in completing the form and the witness assisted her in so doing. She did ask the Complainant for her date of birth as this was one of the questions on the form.

The witness told the Court that an employee’s age is not a matter of concern to the Respondent. In support of this evidence the Court was given a list of employees employed in similar roles to that of the Complainant. This list included dates of birth which showed that the Respondent had employees both younger and older than the Complainant.

The witness told the Court that on becoming aware of the Complainant’s difficulties with the English language she decided to terminate her employment. The Complainant made no complaint of discrimination or harassment at that time.

Conclusion:

Directive 2000/78/EC provides that, in respect to employment, there shall be no discrimination whatsoever on grounds, inter, alia, of age. 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 age of the Complainant was anything other than a trivial influence in the decision leading to her dismissal, her complaint of discrimination will have been made out. (See dictum of Peter Gibson LJ to that effect inWong v Igen Ltd and others[2005] IRLR 258).

Section 85A of the Act provides for the allocation of the probative burden between the complainant and the respondent in cases in which an infringement of the Act is alleged. 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 he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged 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.

It is thus necessary, in the first instance, to identify the putative facts upon which the Complainant relies in advancing her claim of discrimination and harassment. In that regard she made four assertions : -

• That she was dismissed and younger colleagues were not,

• That the Respondent disclosed a preoccupation with her age by asking her for her date of birth after she commenced employment

• That she was looked at with disdain at a Company barbeque

• That she overheard colleagues refer in conversation to her dismissal and those colleagues expressed the opinion that it was because of her age.

The Court has considered each of these matters in turn.

The Complainant firstly asserts that she was dismissed whereas other younger colleagues were retained in employment. The Respondent denies that there was any nexus between the decision to dismiss the Complainant and her age. It is, however, settled on authority that the mere fact of a difference in status (in this case age) and a difference in treatment is in itself insufficient to shift the probative burden. (see the Judgment of the Court of Appeal for England and Wales to that effect inMadarassy v Nomura International plc, [2007] IRLR 246). Accordingly the Complainant has not established a fact under this heading from which discrimination can be inferred.

The Complainant further contends that in enquiring as to her date of birth the Respondent displayed a discriminatory disposition. That line of argument cannot be accepted. It is clear that the Complainant was asked her date of birth in circumstances in which the Human Resources Manager was assisting her to complete a form on which the question appeared. The Court cannot accept that this is a fact from which discrimination on the age ground could reasonably be inferred. Many employment related forms require an employee to disclose his or her date of birth and this, in itself, could not be construed as having a malefic connotation. Moreover, the Complainant, on her own evidence, provided her date of birth on the CV that she submitted to the Respondent in support of her application for employment. Hence, had age been a factor influencing the Respondent’s recruitment practice (and the Court is satisfied on the evidence that it was not) it would have become an issue before the Complainant was offered employment.

With regard to the incident at the Company barbeque, of which the Complainant makes complaint, the Court does not accept that this has any probative effect in advancing the within claims of discrimination or harassment.

The final assertion made by the Complainant is that she overheard a conversation amongst her former work colleagues, with whom she shared a house, the import of which was that she had been dismissed because of her age. It is not the practice of this Court to rigidly apply the law of evidence in proceedings of this nature. Nonetheless, the requirements of basic fairness and natural justice preclude the Court from accepting uncorroborated hearsay of this nature as probative of a fact in issue. Accordingly the Court cannot accept this evidence as establishing a fact from which discrimination can be inferred.

Applying the principle established in Dr Mitchell’s case the Court finds that the Complainant has not established facts from which discrimination could be inferred. Furthermore, no evidence whatsoever was tendered to support the allegation of harassment. Accordingly she cannot succeed.

Determination:

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





Signed on behalf of the Labour Court



Kevin Duffy
25th May 2009______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.