FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : CONRAD HOTEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - VYTAUTAS JURKSA DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal under section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker appealed the decision of the Equality Officer to the Labour Court on the 18th August, 2011. A Labour Court hearing took place on the 29th November, 2013. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Vytautas Jurksa (hereafter the Complainant) against the Decision of the Equality Tribunal in his claim of discrimination against the Conrad Hotel (hereafter the Respondent). The claim was made on the race ground.
Background
The facts giving rise to this claim can be briefly stated. The Respondent advertised a number of positions as laundry assistant on or about 7thNovember 2007. On 22ndNovember 2007 the Complainant applied for the post by e-mail. He was interviewed on 28thNovember 2007. On the following day he was informed that his application was unsuccessful.
The Complainant contends that his application was rejected on grounds of his race as that term is defined by s.6 of the Employment Equality Act 1998 as amended (hereafter the Act).
Position of the Parties
The Complainant contends that he was highly qualified for the position in issue. In effect he submitted that the only rational explanation for his rejection was his race as defined by reference to his nationality. He contends that the person conducting the interview was of African ethnicity and that one of the successful candidates was also African.
The Respondent denies that the Complainant was discriminated against on the grounds alleged or at all. The Respondent pointed out that it appointed two other candidates, one of whom was of East European nationality.
Conclusions of the Court
In order to make out a case of discrimination under the Act a Complainant must first establish facts from which discrimination may be inferred. If the Complainant fails to prove the primary facts upon which his or her claim of discrimination is grounded the claim cannot succeed. This is the clear import of s.85A of the Act and the jurisprudence of this Court in a line of authorities starting with the well-known case ofMitchell v Southern Health Board[2001] E.L.R. 201.
Particular considerations apply in cases in which discrimination is alleged in the filling of jobs. In Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technologythis Court held that in cases involving 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.
That approach by the Court was recently upheld by the High Court inO’Higgins v University College Dublin, Unreported, High Court, Cooke J. 8thNovember 2013.
In Determination EDA077O’Halloran v Galway City Partnershipthe Court pointed out that the qualifications or criteria which are 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 isclearly better qualified against the chosen criteria that an inference of discrimination could arise.
It is also well settled that a mere difference in treatment between candidates having different protected characteristics (in this case race or nationality) is insufficient to give rise to an inference of discrimination(see the Judgment of the Court of Appeal for England and Wales to that effect inMadarassy v Nomura International plc[2007] IRLR 256).
In this case the only basis for the present claim is that the Complainant is of East European nationality and that he was not offered employment. He has not named a comparator in grounding his claim and he has failed to establish any possible connection between his nationality and the Respondent’s failure to offer him employment. In these circumstances he has failed to establish facts from which discrimination can be inferred. In these circumstances his claim cannot succeed.
Determination
For the reasons set out herein the Court is satisfied that the Complainant has failed to establish any facts from which discrimination could be inferred. Accordingly, the Decision of the Equality Tribunal is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
4th December, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.