THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-141
PARTIES
A Complainant
and
A Local Development Association
File Reference: EE/2008/180
Date of Issue: 19th July, 2011
Keywords: Employment Equality Acts, 1998 to 2008 - Section 8 - Access to Employment - Section 6(2)(a), Gender - Section 6(2)(f), Age - Section 6(2)(g), Disability - Section 74(2), Victimisation - Failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by the complainant that he was subjected to discrimination by the respondent on the grounds of his gender, age and disability contrary to sections 6(2)(a), 6(2)(f) and 6(2)(g) and section 8 of the Employment Equality Acts, 1998 to 2008 in terms of access to employment.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 28th March, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 19th April, 2011 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 13th February, 2009 and from the respondent on 2nd March, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 23rd June, 2011. The final correspondence with the parties concluded on 7th July, 2011.
3. Summary of the Complainant's case
3.1 The complainant applied to the respondent for a job as a Receptionist at its Leisure Centre and he attended an interview for this position in late October, 2007 The complainant, who was aged forty six years at that juncture, stated that he has had a disability affecting his back for the past ten years and that he also has depression. The complainant was subsequently informed by the respondent that his application for the position had been unsuccessful. The complainant claims that the interview was not carried out in a fair manner and he stated that the female member of the interview panel (Ms. A) did not identify herself or speak to him at any stage throughout the course of the interview. The complainant claims that Ms. A treated him differently to the other interviewees because it was indicated on his curriculum vitae that he had a disability and he believes that this was the reason why she didn't speak to him during the course of the interview. The complainant claims that this amounted to discrimination against him on the grounds of his disability. The complainant also claims that the respondent failed to provide reasonable accommodation to allow him to re-enter the workforce.
3.2 The complainant stated that the male member (Mr. B) of the interview panel informed him during the course of the interview that the most important thing about the job was that the successful candidate should have "a big smile and hello". The complainant claims that this remark was indicative of the fact that the respondent had decided that a young female candidate would be the most suitable person for the job and he submitted that this constituted discrimination against him on the grounds of his age and gender. The complainant claims that he was very well qualified for the position and he submitted that he did not accept that he scored so low at the interview in the categories of interpersonal skills (including personality, initiative and ability to communicate). The complainant claimed that his skills were equal to any of the other candidates and superior in the areas of writing and research which would have been an advantage in the collation and drafting of reports for the organisation. The complainant stated that he was not afforded sufficient time at the interview to demonstrate and display his competency in those areas.
Victimisation
3.3 The complainant also claims that Mr. A discussed his case with other Community Employment Scheme employers and he submitted that this may have had an adverse effect on his prospect of obtaining employment with one of those CE employers. The complainant submitted that this treatment by the respondent amounted to victimisation within the meaning of the Employment Equality Acts.
4. Summary of the Respondent's case
4.1 The respondent stated that it placed an advertisement on the FAS website for the position of Receptionist at its Leisure Centre in October, 2007. This position was being filled as part of a Community Employment (CE) Scheme sponsored by Fás. The respondent stated that there were nine applicants for the position (eight female applicants and one male applicant i.e. the complainant). The respondent stated that all of the applicants for the position were called to interview and it submitted that the complainant's interview was conducted in the exact same format and structure as that afforded to the other applicants. The respondent stated that the complainant was assessed under the same criteria/requirements for the position as all of the other candidates for the position. The respondent disputes the complainant's contention that Ms. A, Administrator, did not introduce herself or speak to him during the course of the interview and it claims that she explained the nature and requirements of the job to the complainant at the interview as she had with all of the other candidates.
4.2 The respondent accepts that the complainant had plenty of experience in certain aspects of the job. However, it submitted that he was not the best candidate in terms of the overall suitability which it required for the position. The respondent stated that the complainant was substantially outscored in the area of relevant work experience by the successful candidate for the position (Ms. C). The respondent stated that the complainant's interpersonal skills were deemed to be substantially short of the required standard and his approach to the interview was confrontational and bordering on aggressive. The respondent stated that customer service skills and the ability to interact with customers were an extremely important part of the job and it submitted that the complainant did not demonstrate the required competency in this area during the course of the interview. The respondent accepts that Mr. B informed the complainant during the course of the interview that the successful candidate should have 'a big smile and hello' and it stated that this remark was a reference to the requirement for the successful candidate to be able to interact effectively with customers. The respondent denies that this remark was in any way discriminatory against the complainant on the grounds of his gender and/or age.
4.3 The respondent also rejects the complainant's claim that it had already decided before the interview that the successful candidate was going to be a 'young female person'. The respondent submitted that from a customer care viewpoint it needed a Receptionist that would be welcoming and willing to be helpful to all members and customers using its Leisure Centre and under no circumstances did this suggest that a male would not be able to effectively fulfil the role. The respondent submitted that although it had never employed a male as a Receptionist up to that juncture, it has employed males in the capacity of gym instructors who also work at Reception and it confirmed that their level of customer care was every bit as effective as those of their female counterparts. The respondent also submitted that the main reason why it had not recruited a male Receptionist up to that juncture was because of the fact that in the years since the Centre opened it had only ever had one male candidate for this position i.e. the complainant. The respondent stated that it has subsequently employed a male in the capacity of Receptionist at its Leisure Centre. The respondent stated that the complainant's disability did not preclude him from participating in the interview and it stated that the complainant did not request or require any special facilities in order to participate in the interview. The respondent denies that it failed to provide the complainant with reasonable accommodation within the meaning of section 16 of the Employment Equality Acts. The respondent denies that the reason why the complainant's application for the position was unsuccessful was in any way attributable to his age, gender and/or disability but rather was because of the fact that he did not satisfy the requirements for the position.
Victimisation
4.4 The respondent stated that Mr. B, General Manager, was attending a Supervisors Network meeting (subsequent to the selection process in the present case) and during the course of a general discussion with a number of colleagues Mr. B mentioned that he was experiencing difficulty with a person who felt that he was being discriminated against resulting from a recent interview. The respondent stated that one of the other supervisors (Mr. D) present at this meeting suggested that this person was the complainant and he indicated that he was encountering similar difficulties with him. The respondent stated that it was this other supervisor who identified the complainant's name and it submitted that Mr. B, General Manager, did not bring up his name in the first instance during the course of this conversation. The respondent denies that the complainant was subjected to victimisation within the meaning of the Employment Equality Acts in terms of the manner in which his name was mentioned during the course of this conversation.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man". Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows - "as between two persons, .... that they are of different ages" and section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between two persons, .... that one is a person with a disability and the other either is not or is a person with a different disability".
5.3 The issues for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of gender, age and/or disability, in terms of section 6 of the Employment Equality Acts and contrary to section 8 of those Acts in terms of his application for employment to the position of Receptionist. I must also decide if the complainant was subjected to victimization by the respondent contrary to section 74(2) of the Acts. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
Discriminatory Treatment
5.4 The complainant claims that he was subjected to discrimination on the grounds of his gender, age and disability both in terms of the manner in which the respondent conducted the interview which he attended for the position of Receptionist and also regarding the ultimate decision not to select him as the successful candidate for this position. The complainant has claimed that the interview was carried out in an unfair manner and he also disputes the marks that were awarded to him by the interview panel which he claims were not assessed objectively on the basis of his experience for the position and his performance at the interview. The respondent denies that the complainant was subjected to discrimination on any of the grounds claimed and it submitted that the complainant's interview was conducted in the same manner and format as that of the other candidates for the position. The respondent submitted that the reason the complainant was not selected for the position was because of the fact that he did not meet the requirements for the position and that the decision not to select him was in no way attributable to his gender, age and/or disability.
5.5 In considering the alleged discrimination in this case, I am obliged to examine the manner in which the selection processes in relation to this position was conducted by the respondent in order to establish if there is any evidence to suggest that this process was applied in a less favourable or discriminatory manner towards the complainant on the grounds of his gender, age and/or disability. In this regard, I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". Thus, it is a principle that has consistently been followed by both Equality Officers of this Tribunal and the Labour Court that it is not the Equality Officer's role to examine whether the most meritorious candidate was successful in a selection process. Rather, the Equality Officer's role is to examine and decide whether or not the selection process is tainted by discrimination i.e. in this case on the age ground.
5.6 The main grievance that the complainant had regarding the manner in which his interview was conducted was based on his claim that the female member of the interview panel (Ms. A) did not speak to him or address him at any stage during the course of the interview and that he was not afforded adequate time at the interview. In considering this issue, I note that both members of the interview board (Ms. A and Mr. B) gave evidence at the hearing regarding the manner in which the interview process was carried out with all of the candidates that attended for interview (including the complainant). I have found their evidence to be very credible in relation to this issue and I accept their evidence that the complainant was not treated any differently than any of the other candidates on the grounds of his gender, age or disability in terms of the manner in which his interview was conducted. Having regard to the evidence adduced, I am satisfied that the interview board that conducted the selection process in the present case was properly constituted and that it conducted its business in accordance with accepted good practice.
5.7 The complainant also disputed the marks which he was awarded by the interview panel under the selection criteria and in particular, he claimed that his writing/research skills were not given adequate weight by the interview board when assessing his suitability for the job. The complainant further claimed that the respondent had decided prior to his interview that the successful candidate should be a young female and he submitted that the comment made by Mr. B during the interview that the successful candidate should have "a big smile and hello" was evidence of his contention in this regard. In considering this issue, I have taken cognisance of the case of Galway City Partnership -v- Josephine O'Halloran where the Labour Court held as follows: "In that regard the mere fact that of a difference in age between the successful candidate and the Complainant, and a difference in treatment, in the sense that the younger candidate was appointed whereas the Complainant was not, is insufficient to the probative burden ..... ..... Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace 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"
5.8 Whilst it was not in dispute that the successful candidate (Ms. C) for the position was female and some twenty years younger than the complainant, I am satisfied that this fact, in itself, is not sufficient to shift the probative burden of proof in the present case. Having regard to the reasoning of the Labour Court in the Galway City Partnership case, the complainant must be able to demonstrate that the selection criteria were applied inconsistently between the candidates or that he was better qualified for the position than the successful candidate. In this regard, I have examined the scoring sheet that was used by the interview board to assess the performance of each of the candidates that attended for interview for the position and I am satisfied that the selection criteria were applied uniformly and consistently to all of the candidates. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that there was any element of unfairness or irregularity in terms of the manner in which the selection criteria was applied to the complainant's application during the interview process that was conducted in relation to the position in question. I have also examined the CV's that were submitted by both the complainant and the successful candidate for the position (Ms. C) and I am not satisfied that the complainant has established that the marks awarded to him by the interview board in comparison to the successful candidate were irrational or unfair. Accordingly, I am satisfied that I have not been presented with any evidence from which I could conclude that the complainant was better qualified for the position than the successful candidate.
5.9 Having regard to the totality of the evidence adduced, I find that the complainant has failed to raise a prima facie case of discrimination on the grounds of gender, age and/or disability in terms of the manner in which his application for the position of Receptionist was dealt with by the respondent.
Reasonable Accommodation
5.10 The complainant has also claimed that the respondent failed to provide him with reasonable accommodation in terms of its refusal to allow him re-enter the workforce by refusing to offer him the position in question in this case. In considering this issue, I accept the complainant's evidence that he has a disability within the meaning of section 2 of the Employment Equality Acts. However, the complainant has failed to adduce any evidence in the present case to suggest that, he either required or was denied, reasonable accommodation by the respondent within the meaning of section 16(3) of the Acts in terms of his ability to participate in the selection process for this position. Accordingly, I find that the respondent did not discriminate against the complainant contrary to the provisions of section 16(3) of the Employment Equality Acts.
Victimisation
5.11 The final element of the complainant's claim that I must consider relates to the allegation that he was subjected to victimisation by the respondent. Victimisation is defined at section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness is any proceedings under this Act or the Equal Status Act, 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Acts or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs".
The Labour Court has held in the case of the Department of Foreign Affairs -v- Patricia Cullen that "This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimization within the statutory meaning". In the present case, the "cause and the effect" which is purported to represent the act of victimisation relates to the complainant's claim that the respondent discussed his claim of discrimination (to the Tribunal) at a meeting with other Community Employment employers within the local area after his unsuccessful application for employment in the present case. The complainant claims that that this discussion may have had a negative affect on other job applications that he might wish to submit to those other employers. The respondent accepts that its General Manager, Mr. B, was attending a Supervisors Network meeting (subsequent to the selection process in the present case) and during the course of a general discussion with a number of colleagues, Mr. B mentioned that he was experiencing difficulty with a person who felt that he was being discriminated against resulting from a recent interview. The respondent stated that one of the other supervisors (Mr. D) present at this meeting suggested that this person was the complainant and he indicated that he was going through the exact same procedure with him. The respondent stated that it was this other supervisor who identified the complainant's name and it submitted that Mr. B, General Manager did not bring up his name in the first instance during the course of this conversation.
5.12 In considering this issue, I have also taken note of the case of Arturs Valpeters v Melbury Developments Ltd where the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:- "Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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 ..... In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence".
5.13 In the present case, the complainant has made assertions that the discussion between Mr. B and Mr. D may have affected his prospects of employment with some (or indeed all) of the other Community Employment Scheme employers that were party to the discussion on this occasion. The complainant has been unable to back up this assertion with clear and cogent evidence that he suffered a detrimental effect in terms of access to other employment opportunities as a result of the conversation which was initiated by Mr. B at this meeting. I also have found Mr. B to be a credible witness and I accept his evidence that he did not disclose any information during the course of this conversation that would have been detrimental to the complainant's future employment prospects. In the circumstances, I am satisfied that the complainant has failed to establish facts from which it could be inferred that he was subjected to victimisation within the meaning of section 74(2) of the Acts in the present case.
6.1 Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the grounds of gender, age and/or disability regarding access to employment contrary to section 8(1) of the Acts;
(ii) the respondent did not subject the complainant to victimisation contrary to section 74(2) of the Acts.
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
19th July, 2011