EQUALITY OFFICER DECISION NO: DEC-E/2012/026
PARTIES
PRYLE
(REPRESENTED BY ANDREW WHELAN BL
INSTRUCTED BY DONAL TAAFFE & COMPANY - SOLICITORS)
AND
GAELTEC UTILITIES LTD.
(REPRESENTED BY KARA TURNER BL
INSTRUCTED BY KILRANE O'CALLAGHAN & COMPANY - SOLICITORS)
File No: EE/2009/622
Date of issue: 13 March, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8, 31 & 77A - race- - discriminatory treatment -access to employment - indirect discrimination - frivolous and vexatious
1. DISPUTE
This dispute involves a claim by Mr. David Pryle, who is an Irish national, that he was discriminated against by Gaeltec Utilities Ltd. ("the respondent") on grounds of race in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to sections 8 and 31 of those Acts when it failed to appoint him to the positions of (i) Lines Person and (ii) Safety Officer following two separate selection processes in April, 2009. The respondent rejects the complainant's assertions in their entirety and notwithstanding this argument submits that the complainant's claim of direct discrimination on grounds of race is frivolous and vexatious in terms of section 77A of the Acts as the candidates who were successful following both selection processes were also Irish, the same nationality as the complainant.
2. BACKGROUND
2.1 The complainant states that he applied for the position of Lines Person with the respondent, a company which specialises in the design and installation of electricity and telecommunications infrastructures, in April, 2009 in response to an advertisement in a local FÁS Office. He adds the advertisement stated that applicants should be a qualified Lines Person with at least three years' experience of building high voltage lines and that a knowledge of Portuguese is preferred. The complainant was not called for interview and contends that the requirement to have a knowledge of Portuguese for the position is discriminatory as it acts as a barrier to the employment of Irish nationals, who are extremely unlikely to speak that language. The complainant further states that around the same time he was interviewed by the respondent for the position of Safety Officer. He states that he was also unsuccessful in that process and contends that in the course of the interview he was asked how he would communicate with a Portuguese speaking crew. He submits that the reason he was not offered the position of Safety Officer was because he was an Irish national and was unable to speak Portuguese. The respondent rejects the complainant's assertions that it discriminated against him and submits, as a preliminary point, that the complainant's claim of direct discrimination is frivolous and vexatious in terms of section 77A of the Acts
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 20 August, 2009. In accordance with his powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 2 December, 2011, the date the complaint was delegated to me. Both parties had filed submissions at that time and a Hearing on the complaint was scheduled for 22 February, 2012. On perusal of these submissions it appeared the respondent's arguments that the complainant's assertion of direct discrimination on grounds of race was frivolous and vexatious in terms of section 77A of the Acts might be well founded and the complainant's representative was requested to file a supplemental submission by a particular date, setting out any arguments it might have in terms of any assertions of indirect discrimination of its client on grounds of race. Despite a number of extensions to this deadline the Tribunal did not receive the submission. However, in the course of the Hearing on 22 February, 2012 Counsel for the complainant argued that the alleged treatment of the complainant amounted to indirect discrimination of his client contrary to the Acts. In the interests of natural justice I permitted the arguments to be advanced and as this was the first occasion on which the respondent had heard those arguments, I allowed it a period within which to file a response in writing. This process concluded on 6 March, 2012.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he saw an advertisement in his local FÁS Office wherein the respondent was seeking applications for the position of Lines Person. The complainant adds that this advertisement stated applicants should be a qualified Lines Person with at least three years' experience of building high voltage lines and that a knowledge of Portuguese is preferred. He contends that given his qualifications and extensive experience he was an excellent candidate for the position and was surprised when he was not called for interview following a preliminary screening process. He asserts that the decision rejecting a candidate of his calibre without interview must be based solely on the fact that he is an Irish national and cannot speak Portuguese. It is submitted that this treatment constitutes direct, or in the alternative indirect, discrimination of him on grounds of race contrary to the Acts. In the course of the Hearing the complainant accepted that the two applicants who were deemed suitable for interview after the preliminary screening process were Irish but argued that as neither was subsequently appointed to the post, the failure to interview him amounted to direct discrimination. In support of his claim of indirect discrimination it is submitted on the complainant's behalf that the statement in the advertisement that a knowledge of Portuguese was "preferred" is akin to it being required. It is further submitted on behalf of the complainant that a requirement to have an understanding of Portuguese is a factor which puts Irish nationals at a particular disadvantage in comparison with Portuguese nationals and it acts as a barrier to the employment of the former in the respondent company. The complainant seeks to rely on the Determination of the Labour Court in Noonan Services v A Worker in respect of his arguments on this issue. In the course of the Hearing the complainant was unable to state whether or not the two candidates selected to attend at interview for the post had a knowledge of Portuguese.
3.2 The complainant states that around 20 April, 2009 he received a phone call from the respondent (Mr. K) inviting him to attend for interview at the respondent's premises in Kilkenny for the position of Safety Officer. The complainant adds that this position had not been advertised and he had not previously indicated any interest in it. However, in the course of the Hearing the complainant accepted that he had requested an acquaintance of his, who worked in the industry, to canvass on his behalf to prospective employers and further accepted Mr. K's version of events as to how the invitation to attend at interview arose. The complainant states that towards the end of this interview Mr. K asked him a question about how he (the complainant) would deal with a Portuguese speaking crew. The complainant adds that he was not offered the position after this interview and submits that this constitutes indirect discrimination of him on grounds of race as the question put to him amounts to a discriminatory question and is unlawful in terms of the Acts. In the course of the Hearing the complainant stated that he did not consider himself suitably qualified for the position of Safety Officer.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety and notwithstanding this argument submits that the complainant's claim of direct discrimination is frivolous and vexatious in terms of section 77A of the Acts. It states that it received sixteen applications for the position of Lines Person. These applications were assessed at the preliminary screening process against the essential criteria for the post as follows - "candidates must be a qualified Lines Person and have at least three years' experience of building high voltage lines". It adds that having examined the complainant's Curriculum Vitae it formed the opinion that whilst he had extensive experience working on low voltage lines, he did not have the necessary experience on high voltage lines and he was not selected amongst those candidates to attend interview following that process. It adds that the Curricula Vitae of the two candidates selected for interview indicated they met the essential criteria. The respondent submits therefore that the reason the complainant was not selected to attend interview had nothing to do with his level of knowledge of Portuguese and that he has failed to establish a prima facie case of direct discrimination contrary to the Acts.
4.2 The respondent accepts that the advertisement for the post included the comment that a knowledge of Portuguese is preferred. It adds however that the inclusion of this comment was an error as the position of Lines Person has no such requirement. In the course of the Hearing the respondent stated that at that time 96% of employees at the level of Lines Person were Portuguese. It added that those who are the immediate supervisors of those employees (Persons In Charge of Workers or PICW) have a greater need to have a knowledge of both English and Portuguese as they act as the communication conduit between the Lines Person employees and other staff, contractors etc. whose first language is English. It adds that in those circumstances any statement in an advertisement that a knowledge of Portuguese if preferable is capable of being objectively justified in terms of the Acts, given the nature of the services they provide. However, the respondent states that in the instant case neither of the two candidates selected to attend at interview had any knowledge of Portuguese and therefore no such requirement or criterion applied. Accordingly, it submits that the complainant has failed to establish a prima facie case of indirect discrimination on grounds of race contrary to the Acts.
4.3 The respondent submits, notwithstanding its arguments in the preceding two paragraphs, that the complainant's claim of direct discrimination in respect of the selection process for the position of Lines Person is frivolous and vexatious in terms of section 77A of the Employment Equality Acts, 1998-2008. It notes that the complainant bases his complaint on grounds of race - in particular the fact that he is an Irish national. The respondent states that the two candidates selected to attend at interview following the preliminary screening process were also Irish. It adds that for discrimination to occur under section 6 of the Acts any alleged less favourable treatment of the complainant must arise because he has a particular characteristic -in this case his Irish nationality - and the person with whom he compares himself has a different one. It submits that no such difference exists in the instant case and consequently this aspect of the complaint is frivolous and vexatious in terms of section 77A of the Acts.
4.4 The respondent (Mr. K) states that an acquaintance of his approached him and canvassed on behalf of the complainant if a vacancy arose. Mr. K further states that due to an increase in the volume of new projects which the respondent had around April, 2009 and were due to commence shortly thereafter, the respondent had a vacancy for the position of Safety Officer. He adds that on foot of the approach on the complainant's behalf, he (Mr. K) contacted the complainant, requested him to furnish his Curriculum Vitae and asked him to attend for interview as outlined by the complainant. The respondent (Mr. K) states that during this interview the complainant failed to display he had the relevant experience for the position and was not therefore offered employment. He adds that the only other candidate interviewed was considered more suitable and was offered the position. Mr. K denies that the complainant was asked how he would deal with a Portuguese speaking crew; rather he was asked how he would deal with a crew which consisted of a PICW with fluent English and crew members who had varying degrees of English. The respondent submits that this is a reasonable question given the nature of the work which the respondent does and the need to ensure the health and safety of all employees and other parties involved in that work. The respondent adds that the position of Safety Officer does not require any knowledge of Portuguese - all of the staff at that level are Irish - and further states that the successful candidate following interview at that time had no such knowledge. It submits therefore that the complainant has failed to establish a prima facie case of discrimination on grounds of race contrary to the Acts. Notwithstanding the arguments detailed above, the respondent makes a similar submission to that set out in the preceding paragraph, in respect of the allegation of direct discrimination of the complainant as regards this selection process, in terms of frivolous and vexatious under section 77A of the Acts as the person appointed to the post of Safety Officer was Irish, the same nationality as the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not (i) the complainant's claim of direct discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 in respect of the respondent's failure to offer him employment following two separate selection processes in April, 2009 is frivolous and vexatious in terms of section 77A of those Acts and (ii) if not, whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 -2008 and contrary to section 8 or 31 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 The first issue which I must decide is whether or not the complainant's claim that he was directly discriminated against on grounds of race is frivolous and vexatious in terms of section 77A of the Acts. This section permits the Director to dismiss a claim which he considers, inter alia, to be frivolous, vexatious or misconceived. In Farley v Ireland & Ors the Supreme Court stated as follows -
"So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense....It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend which cannot succeed and the law calls this vexatious.".
These principles were subsequently reiterated by the Supreme Court in Fay v Tegral Pipes Ltd & Others . It is clear therefore that in deciding whether or not to dismiss a complaint as frivolous or vexatious in terms of Section 77A of the Acts I must be satisfied that the complainant has no reasonable chance of succeeding in his complaint.
5.3 In order to make out a claim of direct discrimination under the Acts the complainant must show that the treatment complained off was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon. In the instant case the complainant asserts that he was treated less favourably in respect of two separate selection processes - one for the position of Lines Person (when he was not selected to attend at interview following a preliminary screening process) and the other when he was not offered employment as Safety Officer following interview - and that this less favourable treatment of him was because he was an Irish national. It is common case that only two of the sixteen applicants for the Lines Person position were considered qualified to attend at interview and that both of these were Irish nationals. It is also common case that only two candidates were interviewed for the position of Safety Officer and that the successful candidate was also Irish. It is clear therefore that the complainant and the three people with whom he seeks to compare himself in respect of both selection processes share the same characteristic - they are all Irish nationals - and consequently any difference in treatment cannot amount to direct discrimination contrary to the Acts on the impugned ground. Consequently, I find that this element of the complainant's claim is frivolous and vexatious in terms of section 77A of the Acts and I dismiss it in accordance with that provision.
5.4 Section 85A of the Employment Equality Acts 1998- 2008 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 was treated unlawfully contrary to the Acts. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.5 The complainant also contends that he was subjected to indirect discrimination on grounds of race - Irish nationality - in respect of each of the selection processes. It is argued on his behalf, as regards the selection process for the position of Lines Person, that the respondent applied a criterion which required candidates to have a knowledge of Portuguese. It is further argued that this requirement placed Irish nationals, like the complainant, at a particular disadvantage because they are less likely to have such a knowledge in comparison with Portuguese nationals. The complainant seeks to rely on the Determination of the Labour Court in Noonan Services v A Worker in respect of his arguments on this issue. In that Determination the Court held " it is clear that a requirement to have a competency in English is likely to place persons whose native language is other than English at a disadvantage relative to persons whose native language is English. Hence, prima facie, a requirement of competency in English is indirectly discriminatory unless it is objectively justified". I concur with the Court's view on this matter and I am satisfied that it applies equally to circumstances where the native language at issue is not English - in the instant case Portuguese. It is common case that the advertisement for the position which was displayed at the FÁS Office contained the phrase "a knowledge of Portuguese is preferred". On a plain interpretation of this phrase I cannot accept the complainant's submission that it amounts to a requirement to have a competency in Portuguese. In my view it suggests that all others factors being equal, the candidate with a knowledge of Portuguese might be selected over one who has no such knowledge, although I accept that if that neutral criterion was applied to the selection process an employer may find itself having to objectively justify its actions in terms of the Acts.
5.6 The complainant's involvement in the selection process ceased when he was not successful at the preliminary screening stage. I am satisfied that the decision whether or not to qualify a candidate for interview following this screening process was made by the respondent on foot of an assessment of a candidate's Curriculum Vitae. I have examined the Curricula Vitae of the two candidates who were selected for interview following that process and there is no reference whatsoever in either as regards the level of knowledge (or otherwise) either candidate had of Portuguese. The complainant was unable to say if either had any such knowledge. Moreover, I note the advertisement also detailed the essential criteria for the post - a qualified Lines Person with at least three years' experience of building high voltage lines. In the course of the Hearing the parties agreed that in the industry the term "high voltage" refers to lines with a capacity of 110kv or more. From an examination of the Curricula Vitae of the two candidates selected for interview I am satisfied that they indicate both had the required experience to comply with the essential criteria for the post. I also examined the Curriculum Vitae of the complainant and it indicates that the last time he worked on high voltage lines was in 1990-1995. In the circumstances I am satisfied it was reasonable for the respondent to conclude that the complainant did not satisfy the essential criteria for the position. In addition, there is no reference in his Curriculum Vitae to the complainant's knowledge, or lack thereof, of Portuguese. In summary, the two Irish candidates successful at the preliminary screening stage had no apparent knowledge of Portuguese - the same as the complainant. Consequently, the complainant's assertion that a competency in Portuguese put Irish nationals at a particular disadvantage at the point where he was removed form the selection process cannot stand. I have carefully considered all of the evidence adduced by the parties on this issue and I am not satisfied, on balance, that the complainant has established facts from which it could be inferred that the selection process for the position of Lines Person was tainted by discrimination on grounds of race and consequently, this element of his complaint fails.
5.7 The complainant also submits that the failure of the respondent to appoint him to the position of Safety Officer following interview on 22 April, 2009 amounts to indirect discrimination on grounds of race. In support of this assertion he states that during the interview he was asked a question by Mr. K about how he would deal with a Portuguese speaking crew and submits that this amounts to a discriminatory question and is unlawful in terms of the Acts. The respondent denies that the complainant was asked how he would deal with a Portuguese speaking crew and states he was asked how he would deal with a crew which consisted of a PICW with fluent English and crew members who had varying degrees of English. It submits that this is a reasonable question given the nature of the work which the respondent does and the need to ensure the health and safety of all employees and other parties involved in that work.
5.8 However, before dealing with the issue of whether or not the question asked of the complainant is unlawful I must deal with a matter which I consider to be far more central to his complaint. The respondent (Mr. K) states that during interview the complainant failed to display he had the relevant experience for the position and was not therefore offered employment, adding that the only other candidate interviewed was considered more suitable for the position. In the course of the Hearing the complainant stated that he did not consider himself suitably qualified for the position of Safety Officer. I consider this statement to be fatal to the complainant's case as it confirms the respondent's opinion of him at interview was a valid one, reached on an objective assessment of the capability (or otherwise) of the complainant to perform the tasks associated with the position. Furthermore, I am satisfied that it supports the proposition there were factors unconnected with his nationality for the treatment afforded him - he was not offered employment - and thus this element of his complaint cannot succeed.
5.9 Whilst my comments in the preceding paragraph brings a conclusion to this particular matter I consider it appropriate, in the interests of completeness, to address the issue of whether or not the question posed to the complainant in the course of the interview amounts to a discriminatory question. There is conflict between the parties as to what the actual wording of the question was but it is clear that the general thrust of it was to elicit what the complainant would do where communication might be difficult due to a language barrier. I note that 96% of the Line Person employees are Portuguese. In circumstances where the health and safety of employees and others on site might be at risk, I consider it reasonable that the respondent would ask a candidate at interview for the position of Safety Officer how s/he might communicate with those staff. I cannot accept that this question requires or even implies that the candidate must have a knowledge of Portuguese. In this regard I note that the PICW grade has a supervisory role and are competent in English and Portuguese and it would be appropriate for a Safety Officer to use them as the conduit to pass on any information to the Line Person. Moreover, I note the complainant did not contest the respondent's statement that the successful candidate for the position, or for the matter any of the other Safety Officers employed by the respondent, did not have a knowledge of Portuguese. In all of the circumstances I find that the question asked of the complainant was not unlawful on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the complainant's claim of direct discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008, in respect of the respondent's failure to offer him employment following two separate selection processes in April, 2009 is frivolous and vexatious in terms of section 77A of those Acts and is dismissed under that section,
(ii) the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts 1998- 2008 and contrary to section 31 of those Acts in respect of the failure of the respondent to offer him employment following two separate selection processes in April, 2009, and
(iii) the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts 1998- 2008 and contrary to section 8 of those Acts in respect of the question asked of him by the respondent at interview for the position of Safety Officer in April, 2009
and his complaint fails in its entirety.
_______________________________
Vivian Jackson
Equality Officer
13 March, 2012