The Equality Tribunal
Employment Equality Acts 1998-2011
EQUALITY OFFICER'S DECISION NO: DEC-E2013-072
PARTIES
MS. JOHN DOOLEY
AND
FLEXSOURCE LTD
(Represented by IBEC)
File No: EE/2011/139
Date of issue 22nd July 2013
1. DISPUTE
1.1. This dispute concerns a claim by Mr John Dooley that he was discriminated against by the Flexsource Ltd on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts in terms of access to employment in accordance with section 8 of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 21st January 2011 under the Acts. On the 8th February, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 24th April 2013.
2. SUMMARY OF COMPLAINANT'S CASE
2.1. The complainant submits that on 29th July 2010 he attended an interview for a junior position in the new terminal of Dublin Airport. The complainant submits that the interview went well apart from some instances were it was difficult for him to understand what was meant by the questioning. The complainant submits that he presented his training records to the interviewer and when leaving the interview that the interviewer complemented him on his interview and impressive c.v. and assured him that he would be called up for a second interview in two days.
2.2. The complainant submits that at one point during the interview he was asked two particular questions about his past work experience to which he says he gave clear and precise answers. At a later stage the complainant was to discover that he had been marked poorly for those questions. The complaint contests the respondent's records of the interview where it is indicated that those questions were not answered.
2.3. The complaint submits that there was no communication from the respondent until the end of August when he was contacted on his mobile phone, while he was in the company of family and friends, to be informed that he had been unsuccessful. The complainant submits that this method of communication in itself constitutes a form of discriminatory behaviour as it was inappropriate.
2.4. The complainant submits that it appears to him that, in light of his relevant work experience and the good feedback he received from the interviewer on the day of the interview, there is no other reason other then age discrimination behind the decision by the respondent not to proceed with his job application.
3. SUMMARY OF RESPONDENT'S CASE
3.2 The respondent rejects the complainant's claim that he was denied access to employment on the basis of his age.
3.3 The respondent submits that the complainant was not successful as he performed badly in the phase one interview. Specifically, records show he had not answered the two particular questions referred to by the complainant, as above.
3.4 Around 500 vacancies had been advertised comprising of a number of different roles, the respondent had applied for the most junior position and his work experience was not relevant to this role.
3.5 The interviewer in question could did not and could not indicate to the complainant that he would be called back for a phase two interview because a five year reference check must be carried out in the time between both interviews.
3.6 Following the first round of interviews 2,674 candidates out of a total 11,790 were successful.
3.7 All unsuccessful candidates were contacted by telephone.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was refused access to employment on the ground of age. 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 presented at the hearing.
4.2. Section 85A of the Employment Equality Acts 1998 and 2004 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 the he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases.
4.4. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.5. Section 8 of the Employment equality act defines discrimination in relation to access to employment. It provides as follows: -
(5) Without prejudice to the generality of subsection (1), an employer
shall be taken to discriminate against an employee or prospective
employee in relation to access to employment if the
employer discriminates against the employee or prospective
employee --
(a) in any arrangements the employer makes for the purpose of
deciding to whom employment should be offered, or
(b) by specifying, in respect of one person or class of persons,
entry requirements for employment which are not specified
in respect of other persons or classes of persons,
where the circumstances in which both such persons or
classes would be employed are not materially different.
4.6. I must therefore consider the evidence presented by the complainant that selection process was tainted with discrimination. The complaint's evidence in this regard was as follows,
- That the interviewer had indicated that he would be called back for a phase two interview but this had not happened. While this is contested by the respondent I am satisfied that such a statement, if it had been made, would amount to nothing but speculation on the part of the interviewer, as at that point in the selection process he could not have been aware of the relative scores of the thousands of other applicants.
- That he answered two questions in the interview but that the interviewer had indicated no response. Having put the same questions to the complainant during the course of the hearing and having heard the complainants direct evidence I am satisfied that it was reasonable for the interviewer to indicate "not answered".
- He had more work experience then a younger comparator and this should have been taken into account by the respondent. It was accepted by the complainant, at the hearing, that his work experience was not relevant to the role he applied for. In addition, the complaints evidence was that it would take four to five years to acquire his level of expertise. I believe it is reasonable therefore that younger comparators could have the same level of expertise as the complainant.
- The phone call was inappropriate. As all unsuccessful candidates were contacted by phone there is no less favourable treatment. Regardless, I note that the respondent apologised during the hearing for any upset this may have caused.
4.7. Oral evidence was presented to the Tribunal by both parties. From that evidence and the documentary evidence presented prior to the hearing, I am satisfied that the following has been established as being the relevant facts:
- The complaint was one of 9,116 unsuccessful candidates.
- The respondent provided an uncontested age breakdown of the successful candidates demonstrating that a significant proportion were older then the complainant. During the hearing the complainant said that he thought the breakdown was an accurate reflection of the wider working population.
- There is no evidence that the interview or selection process was applied unfairly to the complainant.
4.8. The main argument put forward by complainant was his speculation that the respondent may consider him to be too old. I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. 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.
4.9. Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has established facts from which it can be shown that he was treated in a less favourable manner than others. Rather, I consider that all the complainant has put forward is mere speculation or assertions unsupported by evidence. Accordingly I do not consider that the complainant has established a prima facie case and there is no onus on the respondent to prove the contrary.
5. DECISION
5.1 Having considered all of the written and oral evidence presented to me. I find that that a prima facie case of discrimination in relation to access to employment on the ground of age has not been established and the complaint fails.
____________________
Peter Healy
Equality Officer
22nd July 2013