Equality Officer's Decision
DEC-E2012-172
Tom McGlashan
(represented by SIPTU)
versus
Astellas (Ireland) Ltd
(represented by IBEC)
File reference: EE/2010/104
Date of issue: 11th December 2012
Keywords: Employment Equality Acts, Race, Access to Employment, No prima facie case
Dispute
1.1 This dispute concerns a complaint by Mr Tom McGlashan against Astellas (Ireland) Ltd. The complainant alleges that he was discriminated against on the grounds of race (He is from Scotland and is a British citizen) in relation to access to employment contrary to the Employment Equality Acts 1998-2011 [hereinafter referred to as the 'Acts'].
1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 18th February 2010. In accordance with his powers under Section 75 of that Act, the Director delegated the case on 5th June 2012 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 7th June 2012.
Summary of the complainant's case
2.1 The complainant was employed by the respondent on a series of fixed-term contracts. He was laid off on 27th March 2009. As part of an agreement with his trade union (Services Industrial Professional and Technical Union), he, along with the others who were laid off, was placed on a call-back list in case other vacancies arose within the Astellas plant in Killorglin, Co. Kerry. According to the complainant, this agreement stipulated that people with relevant experience would get first consideration. Mr McGlashan maintains that this did not occur. He submits that at least five other people were taken on with little or no experience. He submits that the management in this plant had a deliberate policy of only employing Irish nationals. Mr McGlashan states that had he been Irish rather than Scottish he would have been reemployed in the summer of 2009.
2.2 He submits that it was a case of 'who you know rather than what you know'.
Summary of the respondent's case
3.1 Astellas Ireland is a subsidiary of the Japanese Multi-National Enterprise Astellas Pharma Inc. Its plant in Killorglin has been in operation since 1992. This plant has a staff of 314 employees and is involved in the manufacture of Prograf - an immunosuppressant to prevent organ rejection after a transplant.
3.2 The respondent submits that Mr McGlashan was only employed on one fixed-term contract from 3rd September 2008 to 27th March 2009. He worked as a Temporary Production Operator in the Capsule Filling Department. The contracts of twenty-two people also expired at that time. They were fortunate to benefit from a company/union agreement:
It is agreed between union and management that if suitable positions arise in the next year (from end March 2009 to end March 2010) Astellas will contact the people below whose contracts have been terminated to afford them the opportunity of an interview if they had a clean performance and disciplinary record. People who are suitably experienced in the relevant line will be first considered. Should a position arise and there is nobody with experience on the relevant line remaining on this list; then the suitability of other experience gained within the company will be considered.
3.3 In line with this agreement, the complainant was invited to attend an interview for the position of Temporary Production Operator in his old Department in July 2009. At this time, there were four vacancies in the Blister Packaging Department. The vacancies were filled by two internal candidates and two candidates listed in the agreement mentioned in Paragraph 3.2. There were four internal applicants and five applicants (including the complainant) as per the agreement. He was not successful at interview.
3.4 The following month Mr McGlashan was interviewed again for further positions that arose. Again, he was not successful at interview. Sixteen of the twenty-two people whose contracts terminated at the same time as Mr McGlashan were taken on subsequently in 2009.
3.5 The respondent submits that it is an Equal Opportunities Employer. Of their 314 employees in Killorglin, there are four people from the UK, three from Japan, two from Poland and one each from Germany and the USA. The respondent points out that Mr McGlashan was hired in the first place even though it is obvious from his CV and his accent that he did not grow up in Ireland. If they had intended to discriminate, they submit they would have done it at that stage.
Conclusions of the Equality Officer
4.1. The issue for me to decide is whether or not Mr McGlashan was discriminated on the grounds of nationality in terms of Section 6(2)(h) of the Acts by Astellas Ireland Co. Ltd in relation to access to employment contrary to Section 8 (1) (a) of the Acts. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus sifts to the respondent to rebut the inference of discrimination raised.
4.3 The respondent submitted the interview notes of both interviews Mr McGlashan did in July and August 2010. Ms A, HR Business Partner was one of the interviewers on the first occasion and Mr B, Production Supervisor and Ms C, HR Business Partner interviewed him on the second occasion. All gave cogent evidence at the hearing that Mr McGlashan simply did not perform well at interview. Mr B said that for somebody who had six months recent experience Mr McGlashan's knowledge of day-to-day duties was poor. He pointed out that the Astellas plant in Killorglin manufactures a life-saving drug and employees need to realise where they fit in as part of the big picture. He said that is not just a case of being automatically reemployed; candidates have to show at interview that they are committed to the work. I am satisfied that the re-recruitment process was not tainted by discrimination.
4.4 Based on the evidence adduced, Mr McGlashan has failed to raise a prima facie case of discrimination on the ground of race.
Decision
I have concluded my investigation of the above complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that the complainant was not discriminated on the ground of race regarding access to employment contrary to 8 (1)(c) of the Acts.
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Orlaith Mannion
Equality Officer