ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001340

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 13/07/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant states she was discriminated on the grounds of age by the Respondent when she was unsuccessful in gaining a position of ‘Christmas Customer Assistant’ contrary to Section 6 (2)(f) of the Employment Equality Acts 1998 – 2011.

The Complainant states that she applied online for the Respondents ‘Christmas Customer Assistant’ position in October 2015.

The first step is completing an online application which the recruitment team stated in the email response “impressed them.” The Complainant was invited to complete a lengthy online questionnaire which she subsequently completed. The Complainant received a reply letting her know they were impressed with her application and invited her to an interview.

The interview was approximately one hour with the Assistant Store Manager. The first part of the interview comprised of the interviewer learning about to the Complainant work experience. The Complainant also had an opportunity to learn more about the position and working with the Respondent. The 2^nd part of the interview entailed going out on the floor and doing some role playing with the interviewer – selling a product/helping a customer. The Complainant stated she was also asked to assess some of the customers in the store at that time and how she would approach them.  The final part of the interview was copying of documents such as passports/driver licenses.  The interviewer also asked a number of set questions from a form, and wrote down the answers, one of which was the Complainants date of birth.  The Complainant stated that she was surprised and a little shocked as she did not think she has ever been asked for that information at an interview before. The Complainant stated by her response this must have been apparent, as the interviewer added words to the effect, “I have to ask this, it’s required/standard practice”.

The Complainant stated she was also told her CV, a copy of referee contact information and a written reference which she had brought to the interview were not needed.

Having done well enough on the online process to be invited to interview, and having felt comfortable with most of how the interview went, the Complainant was disappointed to find out she was not going to be hired.

The Complainant stated she had received more than 70 five star recommendations as a host from guests all over the world staying in her home and prior to that, the Complainant was in a sales/marketing position at a five star hotel and golf resort in Ireland. The Complainant states that she has experience in assisting people and giving quality, five star customer service.

After this, the Complainant visited a couple of the Respondent stores, and paid attention at the age ranges of the staff.

The Complainant thought the majority of the staff were in their 20s/30s.

Respondent’s Submission and Presentation:

The Respondent is an international pharmacy-led health and beauty group. The Respondent has a diverse range of ages within the company from 16 – 65 years old. The Respondent stated it prides itself in its diverse workforce. There were a total of 96 staff in the three stores during the Christmas period. There is an age range of 17 to 62 across the three stores. There is an age range of 16 to 65 in the Respondents store in the Republic of Ireland.

The Complainant was successful in her online application to be invited for interview for the role Christmas Customer Assistant. She was invited for interview on 12^th October 2015 by the Assistant Manager (AM). The Complainant was interviewed in store. The interview was for a position “pod” of three stores, i.e. the interviews conducted were for the purpose of recruiting Christmas Sales Assistants for three stores and successful candidates were then assigned to one of three stores during the Christmas period. This was a temporary position and successful applicants to this particular “pod” of stores in the area remained in employment with the Respondent for an average period of 9 weeks.

The interview questions, practical assignments and marking scheme were pre-set by the Respondent based on the competencies required and were applied consistently across all applicants. Notes were taken during the interview meeting by the AM. The notes were reviewed in the aftermath of the Complainants interview but she was not successful upon the adding up of her scoring.

The Respondent states that the Complainant details her experience during the interview in her claim form. The Respondent states that the experience outlined is in line with the Respondent policy and would be typical of any interview. The Respondent states that the notes illustrate that the AM marked according to her opinion of how the Complainant performed the relevant tasks at interview. This marking was carried out and finalised prior to the final stage of the interview where necessary documents were required.

The Respondents Company policy dictates that at interview stage, a copy of identification must be provided to ensure potential employees have the right to work in Ireland. A date of birth is also requested of employees along with other identification information for the purpose of ensuring employees are within the age of eligibility to work with the Respondent, 16 years and over. This is also done to ensure that if employees are between 16 – 17 years of age, they receive their rest breaks entitlements under the Protection of Young Persons (Employment) Act 1996. This question is asked of all employees in order to ensure a consistent approach. This is a prudent check to be done by any Employer and should not be construed to suit the case of the Complainant.

The Respondent states that the mere fact that the Company knew of the Complainants age is not sufficient in establishing a prima facie case of discrimination. The Respondent states that the Complainants age was not a factor in her non-selection for the post for which the Complainant had applied.

The Respondent states that during all interviews, the interviewer is guided by standard questions that are applied to all interviewees. The Respondent states that there is an evident disparity between the Complainants interview standard and those who were hired. The Respondent states that the Complainant lacked in a number of areas which led to her not achieving the requisite marks to get an offer. As can be seen from the Complainants scoring notes, she scored low in areas that others did not.

For example, successful candidates were required to score at least 12 points in assessment 3 or 4 whereby the Complainants score in each of these assessments was 7 points. A table showing the results of successful candidates in the same store illustrated significant differences in the scoring achieved by successful candidates and the Complainant.

The Respondent states that it is clear that the AM gave a thorough interview and went through all of the questions as per the Respondents question sheet and marked the Complainant accordingly during the interview. The notes show the Complainant had some success on a number of questions. However, the Complainants scoring during the interview indicated that the Complainant was considerably lacking. The Complainant received a mark of 20/36 during the interview versus a successful applicant who received 30/36.

The Respondent states that the Complainant consistently scored lower marks in the 4 instore assessments in direct comparison to other successful applicants.

The Respondent states that the Complainant has stated that it is her opinion that due to age discrimination she was unsuccessful, but she is unable to relate this to any facts. The Respondent states that the Complainant has a perception of the interview in relation to the standardised questions of all employee’s date of birth without linking remarks or actions on the Respondent’s part to bring her to her conclusion.

The Respondent states that in the first instance, the Complainant must establish facts from which it may be presumed that there has been direct or indirect discrimination. In this case, a person applied for a job and was unsuccessful. The Respondent states that the mere fact that she happens to be 63 years of age does not mean this was the reason for her lack of success. A few days prior to the complainant’s interview, a lady of a similar age (59) was interviewed by the Respondent for the same position as the Complainant and was subsequently hired. This successful candidate is a direct comparator. The Respondent states that this clearly illustrates that the Respondent does not discriminate on the basis of age.

The Respondent have a Company’s Diversity Policy which states the following;

“We provide the same opportunities for all applicants and employees in recruitment, selection, development and promotion. The aim of our employment policies is to make sure everyone receives treatment that’s fair, equitable and consistent with their skills and abilities, regardless of gender, sexual orientation, race, ethnic origin, marital status, age, disability, religion or membership of the travelling community. We all have a responsibility. The way we choose to think and act makes a difference.”

The Complainant did not ask for feedback on her interview. If the Complainant had requested such feedback, the Respondent states that it would have been clear that her suitability for the role was assessed to be inadequate due to deficiencies in her performance during interview.

The Respondent states that it is of the belief that the Complainant upon attendance at the Respondents stores and seeing a limited number of people at work, she came to the conclusion that she had been discriminated against on the basis of age.

The Respondent states that the Complainant fails to take account of her performance during the interview process, or indeed the workforce as a whole in the Respondent Company as distinct from those employees whom she observed on specific occasions.

The Respondent states the Complainant has failed to reach the prima facie threshold establishing facts from which discrimination can be inferred.

The Respondent states that the Complainant has grounded her case on a number of assertions, however, these claims are unsubstantiated and are inaccurate at the least and incorrect at the highest level. Further, the Respondent states that they are not facts from which discrimination can be inferred such that the burden of proof shifts to the Respondent.

According to the Complainant the request for her date of birth as part of a standardised identification details was a discriminatory factor The Respondent states it is the Company policy that candidates show their identification and answer a number of standardised questions, including date of birth, at the end of the interview process to ensure eligibility to work. As a result, the Respondent must comply with obligations in relation to the right to work once reaching the age of 16.

According to the Complainant the workforce of the Respondent is disproportionately aged and the Respondent does not employ people of the Complainants age. The Respondent states that this is factually incorrect. Across the Company, the majority of applicants are below the age of 35 with 84% of applicants in 2015 between 16 – 34 years of age. When the figures for the role the Complainant applied for (Christmas Customer Assistant) are looked at in relation to number of applicants it is clear that no age discrimination exists.

In 2015, 5.3% of applicants for Christmas Customer Assistant between 16-24 years were hired, while 5.3% of applicants between 55-64 years were hired for the same role. This illustrates that while the Respondent do not get a large number of applicants in this age range, a proportionate number of recruits are certainly hired at that age, and indeed were and are hired with the Respondent to the exact position the Complainant applied to. Currently 7% of the Respondents Sales Assistants are over the age of 55.

The Respondent states that it is clear that the recruitment process, including the interview questions and assessments, was pre-set and applied consistently amongst applicants regardless of age, and that the Complainant did not experience any disadvantage linked to her age or indeed any disadvantage whatsoever. The Respondent states that the Complainants scores, when compared to the scores of successful candidates, plainly show that others objectively scored higher than her based on the competencies that were assessed.

The Respondent states that the Complainants age had no bearing on the outcome of the selection process. The Respondent prides itself on being an equal opportunities employer.

The Respondent states that on the basis of the above arguments the complaint before the adjudicator today is not well founded.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The Complainant states she was discriminated on the ground of age by the Respondent when she was unsuccessful in gaining a position of ‘Christmas Customer Assistant’ contrary to Section 6 (2)(f) of the Employment Equality Acts 1998 – 2011.

Legislation involved and requirements of legislation:

Section 6 (1) of the Employment Equality Act, 1998 provides:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favorably than another is, has been or would be treated.”

Section 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, age disability, race or a member of the Traveller community for the case to succeed.

Section 6 (2)(f) refers to age in that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)

Section 8 (1) of the Act provides:

“In relation to-

1. Access to employment

2. Conditions of employment

3. Training or experience for or in relation to employment

4. Promotion or re-grading, or

5. Classification of posts,

   an employer shall not discriminate against an employee or prospective employee….”

   Section 8 (4) states:

   (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) states:

   (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.

Decision:

The recruitment process of the Respondent is summarised as follows based on the oral and written evidence presented to the Adjudicator. Candidates complete an online application form then if successful they do the online behavioural assessment. If successful in these the candidates are invited to an interview. Each candidate gets a generic email to invite them to each stage of the process. The interview questions for each candidate are based on the behavioural competencies that are tailored for each candidate based on how they scored in the online assessment. The weakest areas are probed at the interview. Not all candidates are asked the same three competency questions. The assessment conducted on the shop floor varies depending on the business requirements on the floor on the day and can either be on the floor with real customers or can consist of a role play. Some interviews and assessments are done with interviewers and note taker and some are done alone with the interviewer. This is dependent on how busy the store is. Candidates are offered jobs “on the spot” if deemed suitable. The candidates were offered roles on the spot and not compared consistently across the same criteria. The interview process does not wait to compare all candidates’ scores to make a hiring decision.

In relation to the recruitment process experienced by the Complainant it is noted that the interviewer [AM], conducted the interview and took her own notes in an A4 notepad on a clipboard. After the interview was over the AM scored the form then. The interview assessment was not completed. The AM had asked the Complainant for her date of birth prior to filling out the form. According to the Respondent the Complainant was asked for her date of birth to confirm her eligibility to work.

These inconsistencies in the process are concerning.

It is not for an Adjudicator to decide whether the selection process was appropriate or if the correct person was selected for the role. It is the Adjudicators role to decide if age discrimination occurred.

The Respondent states that interviewers ask the age of all those interviewed to confirm their age eligibility. They contend that this information was/is not a factor in their selection process. However, the inconsistencies that I have highlighted in the selection process mean that I am unclear as to what information is used to select candidates.

On this basis I can cannot conclude that the age of candidates was not a factor in this process. I therefore conclude that this, combined with the Complainants non selection, establishes a prima facie case of discrimination on the age ground.

I conclude that the Respondents submission as to why they ask for the candidates date of birth is not sufficient for me to conclude that it was not used in assessing the Complainant for this position.

I have investigated the above complaint and make the following decision in accordance with the relevant sections of the Acts set out above and the following are my conclusions:

I find that the Respondent has discriminated against the Complainant on the ground of age contrary to Section 6 (2)(f) of the Employment Equality Acts (hereinafter the “Acts”) and I aware €750 in compensation.

Dated:   20 October 2016