Employment Equality Acts 2000 to 2011
DECISION NO: DEC-E2013-140
Liam Davis
v
RGIS Inventory Specialists Ltd.
Date of Issue: 12 November 2013
File No. EE/2011/007
Keywords: Employment Equality Acts - discriminatory treatment - age - access to employment - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Liam Davis (hereafter "the complainant") that he was discriminated against on the grounds of his age in relation to access to the position of stock controller with RGIS Inventory Specialists Ltd. (hereafter “the respondent”). The complainant alleges that the respondent treated him less favourably on grounds of his age, in that, he was not given an opportunity to sit the next stage of the selection procedure and was denied access to the post of stock controller with the respondent company.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 10 January 2011 under the Employment Equality Acts. On 16 January 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- 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. My investigation of the complaint commenced on 16 January, 2013 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 11 September, 2013.
2. Summary of the Complainant’s case
2.1 The complainant applied for the post of auditor/stock controller in the respondent company through FAS. The application was on-line and was a questionnaire/test format that took about twenty minutes to complete. The complainant was successful at this stage and was requested to attend at the company’s office on Tuesday 30 November 2010. The complainant states that there were six other applicants all aged in their twenties and himself in attendance. Candidates were given an introduction to the company which was headed by Mr. D, who worked as an auditor for the respondent company. The complainant states that Mr. D advised that the company was recruiting 100 persons and gave a description of the duties involved and candidates were given an opportunity to use barcode scanners. Candidates were informed that training would commence the following week. The complainant explained that he would be unavailable on dates between the 8 and 11 December and Mr. D asked would he be available later in the current week and the complainant advised that he would.
2.2 Candidates then completed an application form and gave bank details and their passports and driving licences were photocopied. The complainant also states that Mr. D took all candidates e-mail addresses on a sheet of paper so that he could contact them for training. The complainant states that Mr. D noted the dates he would be unavailable for the training on the sheet. The complainant states that when he was leaving he asked Mr. D about alternative dates for training and was told not to worry that he would fit him in. On Friday 10 December, the complainant received an e-mail stating that he was unsuccessful with his application. On 13 December, the complainant contacted Mr. D by telephone to clarify the position and Mr. D stated that there was a problem with their system and to ignore the e-mail of the 10 December 2010. The complainant asked Mr. D could he schedule him in for training as soon as possible and Mr. D stated that he was very busy but would do his best. The complainant tried to e-mail Mr. D on 5 and 6 January 2011 but the e-mails bounced back to him. The complainant is alleging that due to his age, he was not permitted to attend for the training and therefore denied access to the position of stock controller. However, he contends that the other candidates all aged in their 20’s were given the opportunity to attend for training.
3. Summary of the Respondent’s case
3.1 The respondent states that, the recruitment process in its company is and has always been that the candidate attends a group session following successful completion of his/her on-line web application and assessment questionnaire. This group session assesses the candidate’s suitability on a number of criteria such as availability and location and a dexterity finger-keying exercise is undertaken. If successful, the candidate is asked to submit further personal details. The reason the company request further details is so that the candidate can be employed and set up on the system very quickly if s/he is successful at second stage. Each candidate is then invited to attend a second in-store assessment session at a customer’s premises to further assess their keying skills.
3.2 The second assessment session is usually scheduled within a few days of the initial interview. During the in-store assessment session, the candidate has to achieve a keying speed of 600 pieces per hour in an auto-quantity environment (single item scanning). The respondent submits that its recruitment data indicates that it has a 70 % success rate after the second assessment stage. The second assessment stage is not paid and this is made very clear to all candidates as it is a qualitative and objective method of assessing candidates and a bona fide and integral part of the recruitment and selection process. The respondent contends that it is clear from the complainant’s submission that following successful completion of the initial interview session, he was invited to the second in-store assessment session. The respondent states that unfortunately the complainant was unable to attend on the given dates and therefore the company’s recruitment system generated an automatic notification that his application had not been successful.
3.3 The respondent states that it has received circa 8,200 applications and has assessed 2,600 applicants throughout Ireland and the UK over the past 7 months. It states that its recruitment process is open, transparent and objective and rejection letters are generated automatically by the system. The respondent states that Mr. D left the employment of the company on 3 January 2011 and they have not been able to locate his whereabouts to give evidence at the hearing. The respondent states that there is no record of HR division ever being informed that Mr. D had made an arrangement to re-schedule the complainant’s second assessment session. The respondent submits that it is clear from the complainant’s own submission that his e-mails were not delivered to Mr. D and it states that it has no record and no recollection of the complainant ever contacting anyone in HR division about re-scheduling the assessment system when the complainant’s e-mails to Mr. D were returned. The respondent questions why the complainant did not make any attempt to contact a member of HR division or indeed, visit the office where he had attended the interview session following the rejected e-mails he received from the company.
3.4 The respondent states that its recruitment and selection process does not take into account the age of the candidate. It states that nowhere throughout its recruitment and selection process is information regarding age sought or recorded. It submits that it currently has 90 employees on its books in Ireland who fall into the following age brackets;
18 - 20 = 4
21 - 30 = 54
31 - 40 = 24
41 - 50 = 6
51 - 60 = 2
The respondent contends that it has no bias towards prospective candidates on grounds of age and that candidates are required to pass each stage of the selection process and are hired on their merits and based on the criteria required for the post in question.
4. Conclusions of the Equality Officer
4.1 The issue for decision is whether the complainant was discriminated against on the ground of his age in relation to the selection procedure for the post of stock controller with the respondent company. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ (Mitchell v Southern Health Board [2001] ELR 201) before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters (EDA/0917) where it stated that 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". In Dublin Institute of Technology and a worker DEE9/94 the Labour Court said “It is not the responsibility of the Equality Officer or of this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the [protected ground] influenced the decision of the interview board.”
4.2 Having evaluated all the documentation and witness testimony in relation to this case, I find that the complainant did successfully pass the interview session and was invited to the additional in-store assessment but he was unable to attend. The company acknowledges that the complainant did notify Mr. D that he could not attend but the company’s system auto-generated a rejection e-mail in error. During the hearing, the complainant produced a hand-written sheet of the contact details for Mr. D and Ms. K who works in HR division. The respondent argued that following one telephone call that he made to Mr. D on 13 December 2010 and the rejected e-mails that he received, it cannot understand why the complainant did not make any attempt to contact Ms. K in HR division or visit the office where he had attended the interview session to follow up the matter. The complainant argues that there is no mention of a HR department in the office structure as outlined in the organisational chart submitted by the company. He also maintains that it was very difficult to make contact with anyone from the company and that his e-mails to Mr. D kept bouncing back.
4.3 Overall, having evaluated all the evidence in relation to this complaint, I am satisfied that had the complainant been available to attend the second in-store assessment training session, he would have been facilitated with doing so. I note that candidates at this stage were required to achieve a keying speed of 600 pieces per hour in order to be successful for the position. However, the complainant advised that he would be away on the dates of the in-store assessment training but he advised Mr. D he could do it either earlier or after the proposed date. I am satisfied that communications appeared to have broken down and at this stage and Mr. D had moved to another branch of the company in Northern Ireland on 3 January 2011. The complainant states that although he made great efforts to contact the respondent company, he was unable to do so.
4.4 Under the Employment Equality Acts, for an inference of age discrimination to arise, the complainant would have to show a nexus between the protected ground and the treatment. Having evaluated all of the evidence in relation to this case, I consider that no such inference can be drawn from the facts of this case. I am satisfied that had the other younger candidates stated that they were unavailable on the specific dates for the second in-store assessment training session, their candidature would have been treated in the same manner as the complainant’s, particularly given the volume of candidates applying for such posts within the respondent organisation. Overall, on balance I consider that the complainant has failed to establish a prima facie case of discrimination on grounds of age.
5. Decision of the Equality Officer
5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008, I issue the following decision;
(i) The respondent did not discriminate against the complainant on the grounds of age pursuant to section 6(2) of the Acts in terms of access to employment contrary to section 8(1) of the Acts.
________________
Valerie Murtagh
Equality Officer
12 November, 2013