The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998-2011
DECISION NO. DEC-E2013-058
PARTIES
Brian Mallon
(Represented by Mr Connell McBride)
-V-
The Construction Industry Federation
File reference: EE/2010/674
Date of issue: 12th June 2013
1. DISPUTE
1.1. This dispute concerns a claim by Mr Brian Mallon that he was discriminated against by the Construction Industry Federation on the grounds of gender, marital status, religion, age and race contrary to section 6 of the Employment Equality Acts in terms of access to employment in accordance with section 8 of the Acts and that he was victimised by the respondent in terms of Section 74(2) of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 7th September 2010 under the Acts and a further complaint of victimisation on the 2nd of February 2011. On the 30th November 2012, 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 14th March 2013.
2. SUMMARY OF COMPLAINANT'S CASE
2.1. The complainant submits that on the 9th of March 2010 he had a meeting with a relevant representative (Manager A) of the Construction Industry Federation (CIF) to discuss employment as an auditor, to work in a specific capacity assessing construction companies who had applied for accreditation of their health and safety processes under an ongoing scheme. The complainant submits that he was told that because the scheme had been very successful, that a vacancy had arisen in order to cope with rising demand. The complainant says he made a formal request to be considered for the vacancy and provided relevant documentation at that meeting to support his application. The complainant submits that the respondent indicated that they wished to employ someone to work in the Dublin area.
2.2. The complainant submits that he contacted the respondent on the 27th April 2010 to enquire regarding the position. He submits that the respondent replied on the 4th of May to inform him that an auditor had been appointed to the position. The complainant submits that he was more qualified then a person he says was the successful candidate.
2.3. The complainant submits that it was apparent that the respondent had introduced new criteria to select a successful candidate, specifically that the successful candidate should be local to Dublin.
2.4. The complainant submits that the motivation for the introduction of such a criterion to be race discrimination as he lives in the United Kingdom and is a British citizen.
2.5. The complainant submits that his case for victimisation is on the basis that he has not been employed by CIF since making his original complaint under the Acts.
3. SUMMARY OF RESPONDENT'S CASE
3.1 The respondent submits that the complainant cold called to their office in March at which meeting it was explained to the complainant that at no time are auditors employed directly by CIF, rather they are engaged on a sub-contract basis to carry out audits on a case by case basis as and when required. The respondent submits that that at that meeting Manager A had indicated that he would keep the complainant's CV on file for consideration.
3.2 The respondent rejects the complainant's claim that he was denied access to employment primarily on the basis that no job existed, a position had not been advertised and interviews had not taken place. The respondent rejects the claim by the complaint that he was led to believe that there was a vacancy in the scheme.
3.3 The respondent completely rejects any allegation that race has ever been a consideration and submit that at no time were they aware of the complainant's nationality. They submit that they contract on a regular basis with auditors from Northern Ireland and the scheme in question was developed jointly with the relevant authority in Northern Ireland.
3.4 In regards to the complaint of victimisation the respondent submits that the complainant has not been assigned audits as there has been a significant reduction in demand due to the conditions in the construction industry.
4. FINDINGS & CONCLUSION
4.1. At the start of the hearing the complainant withdrew his claim in relation to access to employment on the ground of religion. Therefore, I have to decide if the complainant was refused access to employment on the grounds of gender, marital status, age or race. In reaching my decisions 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 sets out the conditions under which discrimination in relation to access to employment can take place. 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 to the Tribunal that he was a prospective employee. The complaints evidence in this regard was as follows,
- That he had an interview. Firstly, taking into account only the evidence of the complainant I am satisfied that the meeting on the 9th of March could not be characterised as an interview. The complaint admits that he called without appointment and that there was no advertised position. When asked why he thought that the meeting was an interview the complainant responded that it was because "he was wearing a suit and talking about the industry". I cannot accept this as only characterising an interview situation. In addition, having heard oral evidence from both parties present at the meeting on the 9th I believe Manager A's account to be more credible and I accept his version of events in that he only met the complainant as a courtesy.
- Both parties agree that Manager A agreed to keep the complainant's CV on file. I can not accept that this indicates any intention on the part of the respondent to enter into a contractual relationship or that it is proof that the complainant was part of a selection process.
- An E-mail in which Manager A states that he has not forgotten about the complainant. Again I cannot accept that this is evidence of intent to enter into an employment relationship or inclusion in a selection process.
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:
- No position was advertised, no interview took place and the complainant was not part of any selection process.
- CIF has engaged four auditors over the life of the scheme to carry out the type of audits that the complainant wanted to carry out. All of these auditors were involved in the scheme since 2001/2002 following an open call for interested parties.
4.8. In relation to the ground of race, the only evidence put forward by the complainant is an E-mail from Manager A in which he states that he is working locally with some one in Dublin to reduce travel costs. It transpires that the Dublin based auditor was not engaged. I note that two of the four of the auditors engaged by the respondent are of the same nationality as the complainant.
4.9. The complainant has advanced no evidence in relation to marital status or gender.
4.10. In relation to the ground of age, the only evidence advanced by the complainant was his speculation that the respondent may consider him to be too young to carry out the work involved. 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.
4.11. 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 if can be shown that he was a prospective employee or 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.
4.12. In regard to the case of victimisation, the complainant has not advanced any evidence other then the fact that he has not been appointed to carry out audits. This is not sufficient evidence to establish a prima facie case.
5. DECISION
5.1 Having considered all of the written and oral evidence presented to me. I find that that a prima facie of discrimination in relation to access to employment on the ground of race has not been established and this element of the complaint fails.
5.2 I find that that a prima facie of discrimination in relation to access to employment on the ground of age has not been established and this element of the complaint fails.
5.3 I find that that a prima facie of discrimination in relation to access to employment on the ground of gender has not been established and this element of the complaint fails.
5.4 I find that that a prima facie of discrimination in relation to access to employment on the ground of marital status has not been established and this element of the complaint fails.
5.5. I find that that a prima facie of victimisation has not been established and this element of the complaint fails.
____________________
Peter Healy
Equality Officer
June 2013