Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-165
PARTIES
Halpin
- V -
Dublin City Centre Bid Company Limited
(Represented by Ms. Antonia Melvin BL on the instructions of O'Connor Solicitors)
File references: EE/2008/299
Date of issue: 07 September 2010
Keywords
Employment equality Acts 1998-2008 - Discriminatory Treatment - Access to Employment - Age - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Andrew Halpin (hereafter "the complainant") that he was subjected to discriminatory treatment contrary to the Employment Equality Acts by Dublin City Centre Bid Company Ltd (hereafter "the respondent") on the ground of his age. The complainant maintained that the respondent discriminated against him when he was not selected for an interview.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 13 May 2008 under the Employment Equality Acts. This claim was made on the age ground. On 27 May 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 31 August 2010.
2. Case for the complainant
2.1. The complainant, who is 65 years of age, maintained that he had sufficient relevant qualifications and experience to be called for an interview for a position as a street ambassador. While the complainant stated that he is not arguing that he was necessarily the best person for the job, he submitted that based on his past employment experience he ought to have been called for an interview. The complainant's suspicions about the manner in which he was treated were confirmed when the respondent claimed that it did not receive emails from him (his computer records confirmed they had been sent). This, combined with the very swift dismissal of his new application, have resulted in him believing that his application was given little consideration because of his age.
2.2. The complainant submitted that on 20 March 2008 he replied to an advertisement on a employment website. Because he received no communication from the respondent he decided to call in person to enquire about the status of his application. Upon discovering that the respondent had not located to their new address, the complainant spoke with a named employee of the respondent on the phone. He submitted that she told him that they had not received his application nor a follow up email that he had sent. The complainant submitted that he expressed his surprise and enquired whether the positions had been filled. The named employee told him that some of the positions had been filled but that there were still some vacancies. The complainant, in turn, informed her that he would resubmit his application and the employee told him she would give him a call to confirm that the respondent had received the application. The complainant submitted that this conversation was courteous and polite.
2.3. The complainant submitted that he never received the promised call confirming the fact that his email had been received. Instead, the very next day, on 15 April, the complainant received an email informing him that the respondent was not considering the complainant for the position. Bearing in mind that he had been told that there were positions available and that the complainant believed that he had the relevant experience, the complainant concluded that the rationale for such decision was based on his school attendance dates set out in his curriculum vitae. The respondent simply decided that the complainant was too old for the position.
2.4. The complainant submitted that the respondent's representative's reply to his query as to why he was not called for an interview confirmed the blatant and shameless discrimination and enforced his determination in seeking justice.
2.5. In summary, the complainant submitted that he wishes to rely on the following facts to establish his claim:
1. That he had enough relevant experience to be considered for the job and therefore be called for an interview;
2. That he had out-door experience contrary to the claims of the respondent;
3. That there a decision concerning his application was made in less than 24 hours;
4. That the respondent had indicated that it had not filled all of the positions;
5. That the respondent represented the conversation that took place between the complainant and a the respondent's named employee in such fabricated terms.
3. Case for the respondent
3.1. The respondent submitted that the first contact with the complainant took place on 14 April 2008. The respondent received a call from the complainant who enquired about a job application he had submitted. The respondent informed him that they had no record of his application. The complainant then requested to meet with a named employee. She informed him that this was not possible as she was about to go to a meeting. In turn, the respondent informed the complainant that some positions where still available and, should he wish to resubmit his application, it would be considered.
3.2. It was submitted that subsequent to this call, as was the practice with all applicants, the named employee conveyed her impressions about the complainant's manner and communication skills to the respondent. The respondent submitted that the employee had found the complainant's tone to be very direct, abrasive and unhelpful. The employee had reported that she felt uncomfortable dealing with the complainant. It was submitted that the decision on who was called to an interview was made by the respondent CEO, not the named employee who spoke with the applicant.
3.3. The respondent submitted that the complainant had issued his previous emails to an incorrect email address. This is the reason why the respondent did not receive them and therefore could not reply to them. It was submitted that the complainant's failure to ensure that he was submitting his application to the correct address was another factor that went against the complainant as the role required good attention to detail.
3.4. The respondent submitted that there were a number of reasons why the complainant was not considered for the job. The complainant, inter alia, had extensive gaps in his employment history, the presentation of his cover letter and curriculum vitae was poor. The complainant wrote using capital letters and used very informal language in his email to the respondent. The respondent did not consider the email to be particularly polite. Furthermore, it was submitted that the complainant's manner on the phone did not lend itself to a role that required good communication skills.
3.5. It was submitted that for a candidate to be called for an interview, a certain standard had to be reached. All applicants were assessed on paper and a standard score sheet was used. The respondent examined the level of research the applicant's had put into the role, their phone manner (the respondent spoke will all applicants), their past education and employment experience, ability work with people, good communication skills, etc. These skills were all considered to be relevant to the post and the respondent stated that it was looking for evidence of persons who could operate in a diplomatic manner in accordance with the requirements of the role.
3.6. It was submitted that 30 applicants applied for the post, 16 of who were successful in being selected for an interview. 8 applicants were appointed. The respondent received applications from people aged in their 20s, 30s, 40s, 50s and 60s. The respondent submitted that age was not a matter of significance. 3 of the applicants were aged 60 or over, 2 persons aged over 60 were interviewed and selected for the position. Overall, the respondent employed persons from all age categories with the exception of 50s category. This was due to the fact that only one person in that category applied and, while he was interviewed, he was not ultimately successful.
3.7. The respondent submitted, relying on Mitchell v Southern Health Board (2001) ELR 201, that the onus to establish a prima facie case rests with the complainant. It was submitted that the complainant has failed to adduce such facts. The respondent had merely exercised its right to apply its selection process and while this contained a degree of subjective application, the respondent had a right to exercise such application.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4.2. Having heard the full facts of this case it is clear that the complainant has established no facts from which age discrimination within the meaning of the Acts can be gleaned. It is clear that the complainant was angered by the fact that the respondent's submission indicated that the complainant's manner was curt and abrupt. The complainant stated at the hearing that he would not have bothered to pursue his claim for it not for these claims. He made it very clear that he did not accept that the dialogue set out in the respondent's submission could be described as such and that he believed that the making of such statement was a clear indicator that the respondent wanted to hide something. I also note that the complainant was irritated by the fact that the said employee was not at the hearing because he believed that he had a right to question her. It is clear to this Tribunal that such questioning was not for the purposes of investigating alleged age discrimination and thus the need for her presence (the employee is on sick leave) was not in any way necessary or appropriate. The salient fact here is that it was agreed that the call was made and the application subsequently received. While the respondent also relied on its employee's opinion (in relation to the applicant's phone conversation), the complainant's issue with her reporting on it had nothing to do with his age. He merely wanted to challenge the employee on her alleged opinion that the complainant was rude.
4.3. The Tribunal was provided with examples of a number of curriculum vitae from both successful and unsuccessful applicants. The complainant accepted that the examples shown to him were impressive. While it is not a matter for this Tribunal to assess who ought to have been called for an interview, it is clear that the successful applicants had, on paper anyway, more relevant experience and background preparation for the role. The relevance of this is that it supports the respondent's submission that these were the type of criteria that were influential when considering who ought to be called for an interview. I note that the complainant scoffed at the respondent's statement that they viewed the use of capital letters as a potential sign of an aggressive personality. I am fully satisfied that the respondent examined the complainant's application and rejected it based on its pre-agreed criteria. While the complainant does not agree with the manner in which his application was assessed and I note he submitted that respondent erred in certain aspects, these issues are not matters for this Tribunal.
4.4. The complainant also objected to the fact that the respondent had called a former employee (a few years older than the complainant) who had been recruited as a street ambassador at the material time. I am satisfied that this objection from the complainant was due to a fundamental misunderstanding of the Acts. The Acts are not concerned with individual experience per se. The statute clearly envisages a comparator situation whereby a complainant must show that the treatment that s/he experienced was less favourable than that received (or treatment that would have been received) by another person in similar circumstances. A nexus must be shown to exist between this treatment and the complainant's protected status. That is, a person claiming age discrimination must be able to show that but for their age they would not have been treated in a less favourable manner. The respondent is entitled to provide evidence to support their claim that they had legitimate reasons for not selecting the complainant for an interview in this instance. I am satisfied that the respondent exercised their discretion in relation to such matters in a planned and systematic manner. There is no evidence of any unlawful discrimination.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in
accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has been unable to establish a prima facie case of discrimination. Therefore this claim fails.
________________
Tara Coogan
Equality Officer
07 September 2010