ADJUDICATION OFFICER DECISION
A Job Applicant v A Consultancy Company
Adjudication Decision Reference: ADJ-00002448
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00003450-001 | 22/03/2016 |
Date of Adjudication Hearing: 28/11/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with 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:
I am complaining regarding Age, Gender and Family Status. I attended interview with Ms. X (Respondent Director) on the 22nd of January 2016. She was pleasant however very dis organised. I was surprised she interviewed me alone and did not follow best HR practice and interview me with a second person to record the interview. The interview was far from professional. It was not structured with a relevant a list of questions or score card to measure competency levels against other candidates. Ms. X and I more had an informal chat which lasted over 1 hour 30 minutes. When I said to Ms. X I was seeking flexible working arrangements in my next role. Frankly I did not expect the answer I got from Ms. X that the Respondent did not offer family friendly working conditions as client needs dictate hours required on projects so flexibility is required from all employees. Sinead told me that she was with the company 12 years and she would not have regular hours as client’s needs dictated that she worked long hours. Sinead told me that the hours may not suit someone of my age given I may have childcare needs. I did not ask about family friendly flexible hours I asked about work life balance within the Respondent. I think this response could be viewed as discriminatory in tone. However being informed that the Respondent was not a 9 to 5pm company which may not suit female candidates with childcare needs is astonishing in this day and age. The condensed 2pm Friday work day in summer time was nice of to point out. Ms. X told me that the role required a lot of travel and long days. Ms. X told me that she would put in 65 hour weeks which may not suit all female candidates like me. I also think mentioning that she would find it hard to fit me in the organization in a more junior role due to my age as consultants were normally younger and recent graduates with some experience and than I was senior was ill advised given its discriminatory tone. Ms. X mentioned that she was a graduate of UCD and asked when I graduated when I told her I graduated in 1998. She mentioned that I was a good ten years ahead of her as she did not graduate until 2008. |
Summary of Respondent’s Submission and Presentation:
Following initial application for a position as a Manager in Human Capital Change Management in November 2015 the Complainant was eventually interviewed for a position as a Strategy and Operations Manager on the 22nd of January 2016.
The interview was conducted alone by Ms. X, a Director of the Company- a very experienced interviewer.
The Interview was conducted professionally and no substance what so ever exists to support the allegations of Discrimination on the grounds of Age, Family Status or Discrimination in failing to secure a job.
Contemporaneous Interview notes, scoring sheets and all available records were presented in evidence from the Respondent. Detailed evidence was presented to rebut all the discriminatory points mentioned by the Complaint in her statement of claim.
The Respondent pointed out that the requirement under Section 85 of the Employment Equality Acts is for the Complaint to establish a prima facie case of Discrimination prior to any necessity for a rebuttal from the Respondents. The Complaint, it was alleged, had failed at this preliminary stage.
Decision:
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:
Did Discrimination under the grounds of Family Status, Age and Failure to secure a job take place? Has the Complaint succeeded in establishing a prima facie case?
Legislation involved and requirements of legislation:
Employment Equality Act, 1998
Decision:
The Burden of Proof is worth noting here.
The Complaint has to establish a prima facie case as per Section 85 of the Act. In Valpeters v Melbury Developemnts Limited ([2010] 21 ELR 64) the Labour Court stated
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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 the case at hand the facts are strongly contested. Both the Interviewer and the Interviewee were Managers of considerable experience and life experience. Both gave strong oral evidence.
It was agreed that the Interview of the 22nd January was conducted in a Conversational Style. The Respondent interviewer, acting alone, took contemporaneous notes and marked a scoring sheet – all presented in evidence.
In reviewing this evidence there was nothing of an overtly discriminatory nature immediately obvious from the written records or the oral evidence given by the Respondent. The Interviewer gave direct oral evidence regarding the Interview and was subject to questioning by the Complainant. The Interviewer had in excess of 10 years experience in Interviewing. The Interview format was one that had been used for a good number of years in the Respondent organisation.
However, this was an interview for a Senior Consultancy position with a major Consultancy Company. The Complaint was, as stated above, a candidate of considerable experience and qualifications. In her evidence she pointed to examples of good practice in Interviewing, always involving more than one Interviewer, in comparable Multi National organisations.
On balance , having reviewed all the evidence and listed to the Complaint and the Interviewer from the Respondent I had to come to the view that the Procedures adopted by the Respondent , in interviewing for a senior Position were too loose and did not have sufficient safeguards built in to protect both parties. The question of including measures, regarding the avoidance of Subjective judgement, on the part of a single interviewer was not satisfactorily addressed.
In the Valpeter’s case ([2010] 21 ELR 64) cited above the Labour Court makes the following comment, in considering the Burden of Proof
“All that is required is that they be of sufficient significance to raise a presumption of discrimination”.
In the case in hand the interviewing procedure was simply not strong enough to unquestionably support any rebuttal arguments that might be made by the Respondents
Accordingly, on procedural grounds, I have to find that the Complaint has by default established a prima facie case. The Rebuttal arguments of the Respondent were comprehensive and made logical sense but in the final analysis the key foundation issue was the one to one interview on the 22nd of January 2016 on which they were based.
Redress
In background the Complainant stated that she had taken and would be using her experiences of the proceedings as part of an Academic thesis she was currently putting together. The Complainant stated that she was not seeking any form of Financial redress and requested a donation to a charity. I explained at the hearing an award of this nature is not possible under the Employment Equality Acts.
At the disclosure of this Academic exercise, only stated at the closing of the Hearing, the Respondent naturally requested that the claim be dismissed as “frivolous and made in bad faith” citing Section 77 (a) of the Act. I gave this issue some consideration. The Complainant promised faithfully to respect the Confidentiality of all proceedings and evidence presented. Her case was based on factual matters that had actually taken place.
On this factual basis I decide not to dismiss the claim as frivolous under Section 77(a).
Accordingly I make the following decision under Section 79 and 82 of the Employment Equality Acts.
The Complainant is directed to Section 97 of the Employment Equality Act and cautioned as regards to Subsection (4) regarding breaches of confidentiality. I direct that she commit to respect the confidentiality of all evidence and maters raised in the hearing. Evidence presented in good faith by the Respondent is not to form part of any Academic exercise.
The Respondent is to pay to the Complainant a sum of € 500 Euro as compensation for discriminatory distress caused.
The Respondent is to immediately review their Interviewing procedures and to look very carefully, from an Equality point of view, at situations where senior positions are being interviewed for on a one person to one person basis, no matter how experienced the Interviewer may be and what notes may be taken even contemporaneously with the Interview. Ideally one to one interviewing for Senior positions should not be part of good practice going forward.
Dated: 24th April 2017