The Equality Tribunal
Employment Equality Acts
Equality Officer’s Decision DEC-E2015-098
Parties:
John Clarke
And
Irish Custom Extruders Ltd.
File Ref: EE/2014/269
Date of issue: 28 September 2015
1. Dispute
1.1 This dispute concerns a claim by Mr. John Clark that he was discriminated against by Irish Custom Extruders Ltd. on the grounds of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 – 2008 in relation to access to employment in terms of Section 8(1)(a) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 23 April 2013 under the Equal Status Acts 2000 – 2008. The claimant was advised that his complaint referred to issues falling under the Employment Equality Acts and was asked to confirm that he wished the matters to be dealt with under that legislation. This he did by letter received by the Tribunal on 10 June 2013. The Director of the Equality Tribunal appointed Joe Donnelly as an Equality Officer on 28 July 2015 and delegated this case to him for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which day my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 19 August 2015 and final information was received on 3 September 2015.
2. Summary of the Complainant’s Case
2.1 The complainant saw an advert for a position as Production Supervisor with Irish Custom Extruders Ltd. (ICE) in December 2013. It was advertised through Intreo. He had previously worked for this company in what appeared to him to be a similar position from 1995 to late 1997 when he left to take up alternative employment. The complainant applied for the position on 27 December 2013 sending a cover letter and CV through email. On 8 January 2014 he emailed the manager that he had sent the application to for an update and received a reply to the effect that because of the Christmas shutdown and the number of applications it was taking time to process matters.
2.2 On 10 March 2014, having heard nothing further from ICE, the complainant wrote to Mr. M., a manager that was known to him from his previous employment with the company, complaining about the fact that he had had no response whatsoever to his application and in particular that he had not been invited to an interview. He received no reply to this letter so he re-sent it by registered post on 18 March 2014. It was delivered and signed for on 19 March 2014 but again no reply was received.
2.3 On 2 April 2014 the complainant sent Form ES1 to the company and listed a number of questions for response by the company on Form ES2. These were queries in relation to requesting reasons as to why he was not called for interview and what criteria was used in the selection of the Supervisor. A response dated 11 April 2014 was received from Mr. D., a director of ICE, thanking him for his application and stating “because of the number of applicants whose qualifications and experience were closer to what we had envisaged for the position, it is with regret that we can confirm you that you have not been shortlisted further for the above post.” The complainant did not accept this as a satisfactory explanation particularly having regard to his experience, qualifications, technical ability and previous track record with the company which included the introduction of ISO ideology and key holding responsibilities. He believed that the reason that he was not even called for an interview was because of his age and for that reason he lodged his complaint with the Equality Tribunal.
3. Summary of the Respondent’s Case
3.1 The company was represented by Mr. D., Director, and denied discrimination. The company had shut down for the Christmas break and upon resuming production in January 2014 the relevant manager began to go through the applications for Production Supervisor which numbered more than thirty. Mr. D. pointed out that the business had changed significantly since the Complainant had worked with them and now exported all over the world including the USA. During early January he received a phone call from an individual who was known to him enquiring about employment with ICE. As a result of that phone call the dynamics regarding the filling of the vacancy changed. Management had been in the process of drawing up criteria for the short-listing of applicants but that was no longer relevant. The directors were considering setting up an operation in USA and the individual with whom he had spoken had experience of setting up companies. It was therefore decided that that person would be given the job of Production Supervisor in order to gain experience of how the company operated and of their products with the intention of that person then setting up an operation for the company in USA. As regards age the successful candidate was in their fifties and was about four years younger than the Complainant (not older as suggested by the respondent in their original submission).
3.2 With regard to age generally as regards employment, Mr. D. stated that the company employed about 32 people and had recruited staff who were in their fifties in a variety of positions over the past number of years. Details of these were subsequently supplied.
3.3 The company had a policy of not advising applicants that they had not been shortlisted for interview as they were a small company and did not have the resources to do this.
4. Findings and Conclusions of the Equality Officer
4.1 The complainant alleges discriminatory treatment on the grounds of his age in relation to access to employment when he applied for the position of Production Supervisor with the respondent.
4.2 Section 85A(1) of the Employment Equality Acts, 1998-2007, states “ Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.3 This complaint is made on the ground of age but, as held by the Labour Court in Anthony v Margetts;“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
4.4 In this case the complainant applied for a position for which he believed he was qualified, particularly having regard for the fact that he had worked for the respondent previously. Two weeks later he requested an update and received a response to the effect that the Christmas break and quantity of applicants had delayed matters. The complainant’s understanding was that he would receive a further communication regarding his application and when this did not occur after two months he wrote a letter of complaint to a member of management known to him from his previous employment with the company and then re-sent the letter by registered post and got proof of receipt of same. When the respondent failed to reply to this communication he took the view that the reason that he was not called for interview was because of his age.
4.5 The respondent stated that the process of short listing candidates for the advertised position stopped following a conversation with the person who was subsequently appointed as that fundamentally changed the dynamics of the process and led to a rethink of the company’s strategy. In addition, as it happened, that person was also in their fifties and only four years younger than the complainant. I accept the respondent’s evidence that the criteria in relation to finding a person to fill the advertised position had changed.
4.6 I have considered all the evidence before me and I find that the complainant has failed to establish a prima facie case of discriminatory treatment on age ground.
5. Decision
I have investigated the above complaint and make the following decision in accordance with Section 79 of the Acts; that the respondent did not discriminate against the complainant in relation to access to employment contrary to Section 8(1)(a) of the Acts on the ground of age.
___________________________
Joe Donnelly
Equality Officer
28 September 2015