ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003650

Complaint for Resolution:  

Date of Adjudication Hearing: 14/09/2016

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of race contrary to sections 6(2)(h) of the Employment Equality Acts in terms of access to employment.

 In accordance with Section 79 of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation: 

The respondent did not engage with the Commission in relation to this complaint. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

Issues for Decision: 

At the outset of the hearing I sought clarification from the complainant in relation to the scope of the present complaint. The complainant confirmed that the claim related exclusively to the alleged discrimination in relation to the nature of the questioning to which she was subjected during the interview with the respondent on 4^th December, 2015. Therefore, the issue for decision in this case is whether or not the respondent subjected the complainant to discriminatory treatment on the grounds of her race/nationality in relation to access to employment and more specifically, the manner in which the interview process was applied to her.

Legislation involved and requirements of legislation:

Section 6(1) of the Employment Equality Acts provide that discrimination shall be taken to occur where “a person 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) of the Acts defines the discriminatory ground of race as follows: – “as between any 2 persons, ... that they are of different race, colour, nationality or ethnic or national origins".

Section 8(1) of the Employment Equality Acts provides:

“(1) In relation to-

(a) access to employment
(b) …..
(c) …..

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

Section 8(5)(b) of the Employment Equality Acts provides:

“(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or a prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee-

(a) ……….
(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.”

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.

The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters[1] 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 deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. 

Conclusions of Adjudication Officer:

In the present case, the complainant is of Thai origin and has been residing in Ireland since 2006. She claims that the nature of the questioning to which she was subjected at the interview by Ms. A. (i.e. Manager of the Respondent’s store) amounted to discriminatory treatment on the grounds of her race. She claims that a white Irish person would not have been subjected to this type of questioning at the interview.

The complainant has sought to rely upon the manner in which a hypothetical comparator (i.e. a white Irish person) would have been treated in similar circumstances in terms of the alleged discriminatory treatment in the present case. In the case of Arturas Businkas –v- Eupat Ltd (In Liquidation)^[2] the Labour Court addressed the issue of the use of a hypothetical comparator: “The complainant’s representative stated that the appropriate comparator is a hypothetical Irish employee. I have no hesitation in using a hypothetical comparator in appropriate situations such as where it is shown that the existing potential comparators are unsuitable for one reason or another”. In the circumstances, I am satisfied that it is appropriate for me to use a hypothetical comparator, namely a white Irish person, for the purposes of my consideration of the alleged discriminatory treatment in this case.

The complainant has adduced evidence that she was subjected to questioning by Ms. A related to her race and nationality during the course of the interview on 4^th December, 2015. She gave evidence that Ms. A questioned her about her nationality, where she “came from”, “how she got an Irish passport” and “how she became Irish”. The complainant also gave evidence that Ms. A asked her a number of questions about her parents including when they had come to Ireland, what they did for a living and whether or not they were in employment.

I have found the complainant to be a very credible witness and I accept her evidence that she was subjected to the alleged treatment by Ms. A at the interview. I am satisfied that the line of questioning adopted by Ms. A at the interview was both inappropriate and totally irrelevant to the position in respect of which she was seeking employment. I take the view that this line of questioning was adopted purely on the basis of the complainant’s racial origin and had absolutely no bearing or necessity in terms of making an assessment about her suitability or capability to perform the job for which she was being interviewed. I am satisfied that a white Irish person would not have been subjected to such questioning about his/her national origins or the national origins of his/her parents at an interview for a position of part-time sales assistant. By subjecting the complainant to such questioning, I find that the interview process as applied her was tainted by the racial connotations and that this treatment amounted to less favourable treatment on the grounds of her race.

In coming to this conclusion, I have also taken note of the fact that the complainant was ultimately successful in her application for the position of part-time sales assistant and proceeded to work for the respondent for a period of one month following the interview. I take the view that the provisions in section 8(1) of the Act which prohibit discrimination in relation to access to employment can be interpreted more broadly to also include a prohibition on discrimination in terms of the manner in which the selection process is applied to a person seeking to access employment. In this regard, I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill^[3] where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination”.

In light of the foregoing, and notwithstanding the fact that the complainant obtained employment in the present case, I am satisfied that the nature of the questioning to which she was subjected and the manner in which her interview was conducted by the respondent amounted to less favourable treatment on the grounds of her race.

Accordingly, I find that the complainant has adduced evidence from which a prima facie case of discrimination on the race ground in relation to access to employment can be inferred. I also find that the respondent has failed to rebut that inference so raised as it did not engage with, attend, nor was it represented, at the Hearing.   It follows therefore that the complainant is entitled to succeed in her complaint. In light of the foregoing, I find that the complainant was discriminated against in relation to access to employment contrary to section 8 of the Employment Equality Acts.

Decision:

Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the complainant was subjected to discrimination on the grounds of race in relation to access to employment contrary to section 8 of the Employment Equality Acts.

It is well established that the redress ordered must be effective, proportionate and dissuasive. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts that the respondent pays the complainant the sum of €750 for the effects of the discrimination.

This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.

Dated: 25^th November 2016