The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E 2015-063
PARTIES
Ms Tasha Naqui
AND
Vantry International
File reference: EE/2013/445
Date of issue: 31 July 2015
HEADNOTES: Employment Equality Acts Sections 6, and 8A – Nationality – Discrimination on Access to Employment.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Tasha Naqui, (of British Nationality and Asian origin who has been living and educated in Ireland), that on 14th August 2013 she was discriminated against in relation to access to employment by Vanty International (who was acting as a recruitment agency for a client) on the grounds of race contrary to section 6 (2)(h) of the Employment Equality Acts.
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 29th August 2013 under the Employment Equality Acts. On 4th June 2015, in accordance with his powers under section 75(4A) of the Acts, the Director delegated the case to me, Gerry Rooney, 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 and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 8th June 2015.
2 COMPLAINANTS' SUBMISSION
2.1 On 5th August 2013 the Complainant applied for a finance position (Corporate Finance Executive) based in Dublin and advertised by the Respondent (on LinkedIn) for a client.
2.2 As she did not receive a response to her application from the Respondent she contacted a representative of the Respondent on 13th August 2013 seeking an update. The Complainant received an e-mail response on 14th August 2013 stating “thanks for your application. However, we are only looking for Irish nationals who are already working in the Big 4 and fully qualified accountants. I would like to keep you[r] application for future opportunities, if you don’t mind. Thanks a lot for your interest.”
2.3 On 28th August 2013 the Complainant contacted the Respondent’s representative again advising the Respondent’s Representative “That’s discriminatory against non Irish, and considered an illegal practice in Ireland”. The Respondent’s representative replied on the same day by e-mail stating “My apologies if my message gave you that impression. They are just looking for Irish people because they want people with a vast knowledge about Irish companies and the Irish accounting system which is not the same as in any other countries. If they were looking just accountants would be easier (sic), but they want accountants fully qualified in Ireland, so if they were living there and working for a long time there they would be considering any nationality. Hope you can understand. As a consequence of this response the Complainant lodged her complaint to the Workplace Relations Commission on 29th of August 2013. The Complainant stated she was discriminated on the basis of her nationality where it was decided that, as she was not Irish or an Irish national, she was excluded from being considered for the role. She stated the decision of Respondent was based on the fact she was not Irish and not on whether she was qualified for the role or if she had the appropriate work experience.
2.4 Following submitting her complaint the complainant stated that she was subject to a series of phone calls from the respondent to pressurise her to withdraw the complaint.
3 RESPONDENT'S SUBMISSION
3.1 The Respondent acknowledged the Complainant applied for a position of employment for a client of theirs.
3.2 The Respondent acknowledged the Complainant would have received e-mails from a person representing the Respondent where these e-mails referred to the fact that the Complainant was not an Irish National. However the Respondent submitted that the person who sent these e-mails was not an employee of the Respondent and was only supplying services to the Respondent pursuant to a consultancy agreement. The Respondent further submitted that within this consultancy agreement the Consultant was responsible for the delivery of the services, and as she was not an employee of the Respondent the Respondent is not accountable or responsible for the actions of the Consultant. As such the respondent contended that the complaint should be directed to the Consultant and accordingly the Equality Tribunal was not entitled to hear a complaint against the Respondent.
3.3 Furthermore the Respondent submitted that whilst their Consultant did send an e-mail stating that we are only looking for Irish nationals this was in fact rectified by the Consultant sending a subsequent e-mail to the Complainant advising they were looking for candidates with Irish experience.
3.4 The respondent also stated that the job advertised required the successful applicant to be a qualified accountant. As the Complainant did not hold an accountancy qualification she would not have been suitable for the role. In effect the Respondent contended that, due to the specific nature of the job, they were looking for a qualified accountant with experience of working in Ireland but it was not a requirement to be Irish to apply for the job. Whilst acknowledging that their Consultant did not have excellent english, the Respondent contended the communication between their Consultant and the Complainant was a mistaken communication rather than discrimination. The Respondent stated the Complainant was aware of this due to a second e-mail she received in August 2013 and which the Respondent contended clarified the matter.
3.5 The Respondent acknowledged that subsequent communications took place between her and the Complainant during September 2013 where the purpose of this communication was to explain to the Complainant what had happened, to advise the Complainant that she was not qualified for the role, and to offer to provide assistance/mentoring to the Complainant in trying to find another position. The Respondent confirmed during these communications it offered the Complainant £1,000 sterling in order to redress the matter.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to initially decide whether the Tribunal is entitled to hear the case as the Respondent contended it was not them but a person on a consultancy agreement that corresponded with the Complainant in relation to her job application.
4.2 Should it be concluded that the Tribunal is entitled to hear the complaint, I then have to decide if the Complainant was discriminated against by the Respondent with regard to access to employment due to her nationality; and whether she was subsequently harassed or victimised by the Respondent due to making the complaint.
4.3 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.
4.4 Jurisdiction to Hear the Case
With regard as to whether the Tribunal has a jurisdiction to hear the case, I refer to the Employment Equality Acts 1998-2011 as follows:
Section 2 defines an employment agency as “a person who, whether for profit or otherwise, provides servicesrelated to the finding of employment for prospective employees or the supplying of employees to employers”;
Section 11 (1) of the act states “Without prejudice to its obligations as an employer, an employment agency shall not discriminate against any person—(a) who seeks the services of the agency to obtain employment with another person”.
4.4.1 I am therefore satisfied the evidence presented confirms that the Respondent did advertise for the position of Corporate Finance Executive on behalf of another person; and that in responding to the position advertised the Complainant had sought the services of the Respondent to obtain employment. The Tribunal therefore finds that under the Employment Equality Act 1998-2011 it is entitled to hear and make findings in relation to the complaint.
4.4.2 The Respondent also contended that the person acting on their behalf was not an employee of theirs but an independent consultant. On that basis the Respondent stated they are not responsible for the Consultants actions, and therefore it should be the Consultant rather than the Respondent who is answerable to the Tribunal. Notwithstanding the Respondent did submit detailed information regarding their use of the Consultant, including submitting a contract for services that was signed by the Consultant and the Respondent. A review of this contract clearly indicates the Consultant was referred to as a Talent Account Manager with a responsibility to supply recruitment services as notified by the Respondent. The Respondent further submitted that they were satisfied that, having completed reference checks, that the Talent Account Manager was competent, although noting the person was not a native english speaker, and had not completed job advertisements in English before.
4.4.3 The Tribunal is therefore satisfied that the person was acting on behalf of the Respondent in relation to the appointment of a Corporate Finance Executive for a client of the Respondent.
4.4.4 The Tribunal is also cognisant of Section 15 of the Act in relation to vicarious liability which states:
15(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
4.4.5 The Tribunal is therefore satisfied that the Respondent is answerable under the Act for the actions of the Talent Account Manager in relation to the sourcing and making decisions on the employment of the Complainant for the role of Corporate Finance Executive that was advertised on the authority of the Respondent for a client of the Respondent.
4.5 Discrimination
With regard as to whether the Complainant was discriminated against, I refer to the Employment Equality Acts 1998-2011 as follows:
Section 6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) aperson is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)
Section 6.(2) (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).
Under Section 8(1) (a) it is unlawful to discriminate in relation to access to employment.
Under Section 8(4) (4) A person who is an employer shall not, in relation to employees or employment—
(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
Section 8(5) of the Act states 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 The Tribunal finds that the Respondent advertised for the post of Corporate Finance Executive in August 2013 through LinkedIn where the Complainant responded to the advertisement and applied for the position through the Talent Account Manager. The Complainant received an e-mail from the Talent Account Manager which clearly stated the Respondent was only looking for an Irish national, which is contrary to Section 6(2)(h) and Sections 8 (1) (a), 8 (4)(4), and 8 (5) of the Act. Upon questioning this rationale by the Complainant on 28th August 2013, the Respondent further stated in a second e-mail on 29th August 2013 that they were looking for Irish people.
4.7 The Respondent argued that their second e-mail clarified that their client would accept any nationality provided they had the relevant experience of working on Irish accounts, and that the message from the Talent Account Manager to the Complainant was a miscommunication due to the poor english of the Talent Account Manager. Significantly the Respondent also advised the Tribunal that they were aware on the appointment of the Talent Account Manager that she had not conducted recruitment advertisements in English. The Respondent also advised she was not aware at the time that the Talent Account Manager had sent the e-mails to the Complainant.
4.8 In cross examination the Complainant also acknowledged the job advertisement had stated that applicants were required to be fully qualified accountants with a minimum of three years’ experience in corporate finance. The Complainant acknowledged she was not a qualified accountant, but the decision of the Respondent to disregard her application because she was not Irish denied her a fair opportunity to be considered for the position, stating that she had been successful in applying for accountancy jobs previously without being qualified.
4.9 The Tribunal therefore finds that the Respondent did advise the Complainant on two occasions that the decision not to progress the Complainant’s application was that she was not Irish.
4.10 The Tribunal also notes under Section 15 (3) of the Act that it shall be adefence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
The Tribunal noted that whilst the Respondent was aware of the lack of experience of the Talent Account Manager in relation to advertising in english, it did not present in its defence any steps taken to prevent the Talent Account Manager from referring to the nationality of the Complainant with regard to any decision relating to selection for employment. Rather the Respondent contended that the Talent Account Manager operated on her own initiative, that the actions taken were not the responsibility of the Respondent, and in any event the Talent Event Manager had terminated their own contract for services shortly after the event and no longer provided services to the Respondent.
4.11 I therefore find that the Respondent, through the actions the Talent Account Manager, and contrary to Section 8 of the Act has discriminated on the grounds of race (nationality) in relation to access to employment.
4.12 Harassment and Victimisation
The Complainant also stated that she was pressurised by the Respondent as a consequence of making her complaint to the Workplace Relations Commission. Section 14A (2) (a) (i) of the Act states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and being conduct which…has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
Under the Section 74 (2) of the Act, “victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by acomplainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”.
where “such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
4.13 The Tribunal heard that the Complainant received a series of phone calls from the Respondent in September 2013 following the submission of her complaint to the Workplace Relations Commission. The Complainant contended that she had been offered money to drop her complaint, and evidence presented to the Tribunal confirms that the respondent did offer the sum of £1,000 sterling to withdraw the complaint. However the Complainant did not formally submit a formal complaint of harassment or victimisation to the Workplace Relations Commission on this issue.
4.14 During the hearing this matter was subject to much conflict between the parties whereby the Complainant was clearly offended by the approaches made by the Respondent, and the Respondent stated the purpose of the contact was to advise the Complainant that the basis of the decision was not related to her nationality but was due to the fact the Complainant was not qualified for the job as she was not a qualified accountant. It was contended by the Respondent that the offer of £1,000 was to redress the offence that was caused by the e-mails which were written by a person whose native language was not english, and what happened amounted to a miscommunication rather than a decision based on nationality.
4.15 In considering this matter I am conscious of Section 14A(2) of the Act which provides a defence for an employer who can prove they took reasonable steps to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
4.16 The Tribunal, whilst acknowledging the Complainant found the Respondent’s attempts to contact her about the complaint was offensive to her, is satisfied the Respondent, in offering the Complainant £1,000, was motivated towards reversing the situation and the offence caused to the Complainant by the e-mails from the Talent Account Manager. It is clear the Complainant was not qualified for the position and as such it would not have been reasonable for the Respondent, by way of reversing the effects of the discrimination, to appoint the Complainant to the position. Notwithstanding, as the Complainant did not lodge a specific and formal complaint of being harassed or victimised following her initial complaint, as she is required to do so under Section 77 of the Act, I am precluded from hearing specific issues in relation to this matter, suffice to comment on the matter as it was referred to by the Complainant in her written submission, and commented on by the Respondent in her response submission.
5 DECISION
5.1 I have investigated the above complaints and in accordance with section 79 of the Acts have decided that the Respondent did discriminate the Complainant contrary to Section 14A of the act, and in a discriminatory manner on the grounds of nationality by sending the Complainant an e-mail on two separate occasions stating that the respondent was only interested in Irish nationals, and
5.2 With regard the finding of discrimination, I am conscious that the Complainant was not qualified for the job, and had her application been considered beyond the fact that she was not an Irish national, it is highly unlikely she would have been found suitable for the job. This is based on the objective criteria as set out in the key requirements for the job that clearly required the candidate to be a fully qualified accountant with a minimum of three years’ experience. The Complainant did not meet this criteria.
5.3 Once proscribed treatment occurs the Respondent is fixed with liability unless the defence provided for at Section 15(3) of the Acts is successfully made out. Hence, in accordance with the Act the Respondent must show that it took such steps as are reasonably practical to prevent discrimination.
5.4 This suggests that an employer (or employment agency) must be conscious of the possibility of discrimination occurring and have in place reasonable measures to prevent its occurrence. This requires the Respondent to show, at a minimum, that a clear anti-discrimination policy was in place before the discrimination occurred, and that the policy was effectively communicated to all employees and consultants providing recruitment services. Moreover, personnel should be trained to understand the extensive nature of discrimination and to recognise its manifestations.
5.5 In this case the Respondent whilst knowing the Talent Account Manager did not have experience of advertising for posts in English, did not demonstrate that they took such steps as were reasonably practicable to prevent discrimination by the Talent Account Manager under Irish Employment Equality legislation. The Respondent’s defence was that they were not responsible for the actions of the Consultant (a person they appointed to supply the recruitment services). The Respondent further failed to demonstrate any awareness of their obligation in this regard. It is not sufficient for the Respondent to simply wash their hands of the actions of their service provider, as to do so demonstrates a disregard of their obligations under the Employment Equality Acts. The Tribunal is of the view that had the Talent Account Manager been conversant the Employment Equality legislation that operates in Ireland, it is unlikely the discrimination would have occurred. The Respondent has a key responsibility to ensure all it employees, and consultants acting on its behalf, are trained in their obligations under the Equality legislation, and demonstrate that they have appropriate policies and procedures that support the obligations which are made available to all employees and consultants.
5.6 Therefore in all the circumstances I do not accept that the defence provided for by the Respondent under Section 15(3) of the Acts can avail the Respondent. Accordingly, the Complainant is entitled to succeed in this aspect of her claim.
5.7 Taking all this into account, and in accordance with Section 82 of the Act, I order:
5.7.1 The Respondent pay the Complainant €2,000. This is redress for the infringement of the Complainants statutory rights, and therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004). In making this award I am conscious that whilst the Respondent demonstrated a clear and blatant discrimination on the grounds of nationality, the Complainant was not qualified for the job and would not have been appointed had all matter been considered.
5.7.2 In accordance with Section 82 (e) of the Act, the Respondent to provide up to date policies and procedures in order to prevent the occurrence of further discrimination by its employees and consultants, to ensure that all contracts for services issued in the future to require consultants engaged by the Respondent to adhere to the requirements of the Irish Employment Equality Acts 1998-2011, and that the Respondent is to ensure all employees and consultants receive appropriate and adequate training on the Respondent’s obligations under the said Acts.
____________________
Gerry Rooney
Equality Officer
31st July 2015