DEC-E2017-047

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-047

PARTIES

Alan Bermingham

Complainant

AND

Alexion Pharma International Trading

(Represented by Lorna Lynch, BL instructed by A&L Goodbody Solicitors)

Respondent

File reference: EE/2014/124

Date of issue: 14 June 2017

1. Introduction:

1.1 On the 7th March 2014, the complainant referred a complaint to the Equality Tribunal pursuant to the Employment Equality Acts. The complainant asserts that he was discriminated against on the age ground with regard to access to employment. On the 20th July 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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.

1.2 The complaint was scheduled for hearing on the 27th July 2015. The complainant attended the hearing in person. The respondent was represented by Lorna Lynch, BL instructed by A&L Goodbody Solicitors. Two witnesses attended for the respondent and one witness attended for the recruitment agency.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Submissions and evidence of the complainant:

2.1 The complainant outlines that he was subjected to discrimination on grounds of age following his application to the respondent for a position as Artwork Manager. The date of the first occurrence of the discriminatory act was the 22nd October 2013. Prior to the submission of this complaint, the complainant had submitted a complaint pursuant to the Equal Status Acts regarding the same matter. In the details of the complaint, the complainant outlines that he sought employment with the respondent via a recruitment agency. He applied for the role of Artwork Manager with the respondent, which was at the time establishing manufacturing facilities in Ireland. The complainant sought to apply for the position via the recruitment agency. He was scheduled to be interviewed by the respondent and the recruitment agency on the 23rd October 2013, but this did not proceed. The complainant outlines that in correspondence that followed the cancellation of the interview, differing explanations were provided for this. They included that the position was on hold and that the position required a candidate with experience in the pharmaceutical sector. He submitted that something must have occurred in his interview preparation meeting of the 21st October 2013 that caused the interview to be cancelled.

2.2 As explanation for the cancellation, the complainant was told by the named recruiter that the position was on hold. She said that this was because this position was not an immediate priority. She commented positively on the complainant’s CV and that she would be in contact if another role arose. The complainant stated that this was strange because if the position was only on hold, it would be subsequently re-activated in the future. This was an untruth on the recruiter’s part. When the complainant later became aware that the position was not, in fact, on hold, he complained to the recruiter. She answered that the post had been on hold while two candidates with pharmaceutical experience were being interviewed. He questioned why he had not been given this explanation at the outset and why the job specification used by this recruitment agency and other agencies did not stipulate a requirement for sector experience. He submitted applications via other recruitment agencies and in one call back, the recruiter explained that he could not advance the complainant’s application and said that the respondent was looking for someone to work with them over the next 10/12 years. The complainant states that this was a reference to age.

2.3 The complainant submits that as his interview was cancelled within 24 hours of when it was due to be held, he can infer that the respondent and the recruiter had both examined his CV. This was also some four days after his application and his initial conversation with the recruiter. He performed well at the interview preparation meeting on the 21st October 2013 and received positive feedback from the senior recruiter present. This included comments that the complainant could develop the role into a greater role and that as the interview would be a 30-minute interview, he should make sure to convey the most relevant details of his career so he did not run out of time. He outlined that the passage of time between, on the one hand, his application and the initial telephone conversation and, on the other hand, the cancellation of the interview, it can be inferred that something occurred to lead the respondent to the decision to cancel his interview. He points to subsequent inconsistent explanations given by the respondent and the recruitment agency to address his concerns. He asserts that the decision to cancel his interview was because he was a “mature candidate” and that this was a decision made by the respondent.

2.4 In an email to the recruiter of the 4th November 2013, the complainant states that he is a little surprised and perplexed at the role he was told was on hold being advertised by other recruitment agencies acting on behalf of the recruitment agency engaged by the respondent. He asks for clarification. In a letter of the 19th December 2013 addressed to the respondent Chief Human Resources Officer, the complainant raises his dissatisfaction with his job application experience with the respondent. He raises the lack of integrity and honesty in the process and that this, in turn, questions whether the respondent is an equal opportunities employer. He gives an outline of his career in print/packaging, including managing artwork for large client pharmaceutical and life science companies. He refers to pursuing an application with other recruiters engaged on behalf of the recruitment agency and the respondent, and not being able to advance an application. He was critical that these recruiters had not altered the job specification to clarify that sector experience was required. He had particular expertise in the IT industry and had not been able to convey this expertise with an industry professional following the cancellation of the interview. Job specifications issued at this time by the respondent for other roles referred specifically to sector experience; the specification for his role did not. He had a great deal of relevant experience and expertise to put forward in his support of his application. In a submission of the 14th July 2015, the complainant submitted a job specification issued by a different recruitment agency relating to the same role. This was the recruitment firm with whom the comment about working 10/12 years was made. He had applied for their advertised role on the 8th November 2013 and this recruiter had informed him that he could not progress this application as he had already gone through the primary recruitment agency engaged by the respondent.

2.5 In an email of the 17th June 2015, the complainant indicates that he wishes to interview ten witnesses as part of this adjudication. They are employees or former employees of the respondent, the recruitment agency or of other agencies involved in these events. One witness – witness no. 8, the respondent Hiring Manager, attended the hearing. In an email of the 1st July 2015, the complainant states that the recruiter has since left the recruitment agency and two other witnesses declined to attend. Other invited witnesses did not respond. He comments that the recruiter who was left states her LinkedIn profile that she continues to work for the recruitment agency. He outlines that he is concerned that the witnesses he wishes to attend the hearing will not attend.

2.6 At the hearing, the complainant said that he required certain witnesses be required to attend the hearing. They were employees of the respondent, the recruitment agency or other agencies engaged in the recruitment process. The witnesses included employees resident in Ireland, in the US and elsewhere. Some of the prospective witnesses have moved roles since October 2013. The complainant identified three witnesses as particularly important as their evidence was needed to investigate the requirement of sector experience for the role. Their testimony was necessary to refute the three excuses given by the respondent: that the role was on hold, that there were two candidates with sector experience and that it was a requirement to have sector experience. Different reasons had been given regarding why his interview did not go ahead. The reply from the respondent Chief Human Resources Officer raised more questions than it answered and did not address allegation of age discrimination. He said that the respondent had engaged in character assassination in its description of the screening interview of the 21st October 2013. The respondent had not had regard to his ability to do the localisation aspect of the role. He said that the respondent had waited until the day before the interview to cancel it. Taking these facts and inferences, the respondent had subjected the complainant to discrimination on grounds of age in its treatment of the complainant.

3. Submissions and evidence of the respondent:

3.1 The respondent denies the claim and asserts that the complainant has not established a prima facie case of discrimination. In submissions of the 13th June 2014, it provides statistical data on the age profile of its staff. It spoke to eight employees or recruiters in the preparation of these submissions. It states that age was not a factor in not progressing the complainant’s application to interview and that it did not know the complainant’s age. The respondent outlines that the complainant’s CV was sent to the respondent Hiring Manager, who replied that this candidate was not suitable as he lacked experience in the artwork process of a multi-national pharmaceutical company. In an email exhibited and dated the 18th October 2013, the respondent Hiring Manager states “Not sure this candidate is suitable for the role. Although he has great artwork experience he has very little experience managing the specific artwork process in the multi-national.” The respondent submits that the feedback it received from the recruitment agency was that he had not performed well at the meeting of the 21st October 2013. The respondent had regard to the strong candidates it was interviewing for this role when deciding not to proceed with the complainant’s interview. The respondent refers to case law regarding the burden of proof in age discrimination cases, including Meehan v Leitrim County Council DEC-2006-014. It concludes that the complainant was not progressed to interview as he did not have the relevant sector experience and because he performed poorly at the interview of the 21st October 2013.

3.2 In her response of the 23rd January 2014, the respondent Chief Human Resources Officer states that it was outside of the desired process for the complainant to have been offered an interview with the respondent prior to completing an interview with the recruitment agency. It had been inaccurate to say to the complainant that the position was on hold. The respondent submitted redacted copies of the candidate profile forms and the curriculum vitae of the two candidates interviewed, one of whom was appointed to the role. One candidate refers to having 11 years experience and the other 18 years. The respondent also does not accept that the comment attributed to a third-party recruiter occurred.

3.3 At the hearing, the Hiring Manager said that the role was a cross-sector internal role that required regulatory and commercial experience. The art work role occurred at the end of the manufacturing process. He referred to the job specification and that the requirement for production supply/management experience. This was relevant as the respondent was centralising the function across international markets. Commenting on the complainant’s CV, he said that it did not demonstrate experience in a highly regulated environment such as the pharmaceutical sector. He said that the large computer manufacturer for whom the complainant had worked for many years did not operate in the same regulated environment. The manager scheduled to interview the complainant had only just been hired by the respondent and was in the process of working out his notice. The Hiring Manager had made the decision not the progress the complainant’s application and also met the two other candidates. The successful candidate had experience of developing specifications and managing the process. The Hiring Manager said that at this time the respondent was engaging in a vigorous recruitment process, taking on a great number of roles.

3.4 The recruiter gave evidence that this was an intense period of recruitment, with staff working late into the evening. Due to the workload, the first step was a phone screen where the candidate was telephoned. She outlined that the recruitment agency did not send cover letters with candidate profiles and their CVs. It also did not communicate with third-party agencies it engaged about individual candidates.

3.5 In closing submissions, the respondent outlined that the initial legal burden rested on the complainant to establish primary and significant facts that raise the inference of discrimination. The complainant had been present at all the interactions and could offer his evidence as to the facts. The question to be determined was whether the process was tainted with discrimination. The respondent submitted that the complainant had not established such primary facts to raise the inference of discrimination. It was not sufficient to speculate. While the recruitment process had not been imperfect, it had not been tainted with discrimination. In respect of the complainant’s letter to the respondent Chief Human Resources Officer, the issue of age discrimination had only been raised at the end of the letter. There was no reference to the comment made by the third party recruiter. It commented that the successful candidate had relevant sector experience and referred to the email of the 18th October 2013 regarding the suitability of the complainant for the role.

4. Findings and conclusions:

4.1 The complainant has a wealth of experience in print/packaging production, mainly in the IT sector, but more recently as a contractor for providers of packaging and print to the pharmaceutical sector. On or about the 14th October 2013, the complainant submitted an application and his CV to a recruitment agency for the advertised position of Artwork Manager with the respondent. He was contacted by telephone by a named recruiter and she created a candidate profile for the complainant. She requested the complainant’s permission that this be forwarded to the respondent (which he gave) and arranged an interview preparation meeting for Monday, 21st October 2013. The complainant attended this meeting and met with this recruiter and a senior colleague from the recruitment agency. There is a conflict between the parties as to how the complainant fared at the interview. The complainant says he performed well and refers to positive comments from the recruiters. In its submissions, the respondent provides a different account and states that the complainant did not perform well. There is no note of the meeting of the 21st October 2013 and neither recruiter was present to give evidence at the hearing. The complainant had been scheduled to attend an interview with the respondent on the 23rd October 2013, but this was cancelled by the recruitment agency the day before the interview was to take place. The recruiter provided the complainant with an untrue reason regarding why the interview would not proceed; she said it was ‘on hold’. I can say that this explanation is untrue because two other candidates were being interviewed for the role and other recruitment agencies, engaged via the primary recruitment agency, were also advertising the role. The respondent accepts that the position was not ‘on hold’ and that the complainant should not have been told this.

4.2 The complainant was dissatisfied with this recruitment process and raised this with the recruitment agency and with the respondent. He also applied for roles advertised by other agencies, and it transpired that the roles advertised were the same role with the respondent. The complainant asserts that he has been the subject of dishonest treatment by the respondent and the recruitment agency, and that this was discriminatory treatment on the age ground. The complainant interacted with employees of the respondent, the recruitment agency and of third party recruiters. Some had left their employment at the time of the hearing. The complainant contacted a list of ten witnesses to ask that they attend the hearing. One witness – the Hiring Manager – attended in order to give evidence for the respondent. Others did not attend or declined to attend or were non-contactable. At the time of the hearing, some resided outside of Ireland, for example in the US or in Asia.

4.3 The complainant asserts that he was the subject of discriminatory treatment on the age ground in seeking access to employment with the respondent. Before considering the case in detail, it is worth setting out the relevant legal test. InSouthern Health Board v Mitchell [2001] E.L.R. 201, the Labour Court considered the evidential burden imposed by section 85A of the Employment Equality Acts in the following terms:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

4.4 In Cork City Council v McCarthy (EDA 21/2008), the Labour Court held:
“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

4.5 The first issue to address in this case is the request that the ten witnesses supplied by the complainant in a list be required to attend the hearing. In fairness to the complainant, I note in the respondent’s submissions that it interviewed witnesses in the course of its investigation and that these interviews used in preparation of its submissions. The Hiring Manager attended the hearing and gave evidence. He spoke to his email of the 18th October 2013 where he states “Not sure this candidate is suitable for the role. Although he has great artwork experience he has very little experience managing the specific artwork process in the multi-national.” He added to this at the hearing by giving evidence of the requirements of the role and the attributes of the two candidates who were interviewed, and of the candidate who was successful.

4.6 My role in this adjudication is to determine, in the first instance, whether the complainant has established a prima facie case to raise the presumption of discrimination. In order to complete an investigation into such a complaint and pursuant to section 95 of the Employment Equality Acts, I can require the attendance of a party or witness to the hearing. This is a power that can be used to determine, on the balance of probabilities, such facts as required to establish that a prima facie case is made out. It is not an appropriate to exercise the power to show that a process was unfair, as opposed to discriminatory. In A Government Department v A Complainant (EDA0515), the Labour Court held as follows:

“The complainant submitted a list of persons whom he wished the Court to summons as witnesses to give evidence in his appeal.

The Court will only exercise its power to compel the attendance of persons before it in circumstances where:
1. The Court is satisfied that the persons concerned have relevant and admissible evidence to give in relation to facts at issue in the proceedings.
2. That the prospective witnesses are unable or unwilling to attend unless compelled to do so.

In the present case the complainant has not sought the voluntary attendance of any of the persons concerned. Further, the complainant has been unable to indicated what if any evidence could be given by the person named which would have any probative value in the prosecution of his appeal or which would not be available from other witnesses who will be attending on behalf of the respondent.”

4.7 Having considered the submissions and evidence of the parties, I declined adjourning the hearing to summons any of the nine other witnesses identified by the complainant. I acknowledge that the complainant invited the attendance of all ten witnesses, Apart from the Hiring Manager, I do not believe that they have relevant evidence to give in resolving the legal and factual issues that need to be addressed. I note that the Hiring Manager was present to give evidence and did so. I do not believe that the other witnesses had relevant evidence to give regarding whether the decision not to proceed with the complainant’s interview was discriminatory. I note that any conflict of evidence where the complainant asserts facts in evidence that are not directly rebutted in evidence, such a conflict must be resolved in favour of the complainant. This arises most strikingly in the respondent’s assessment of the complainant’s performance at the interview preparation meeting of the 21st October 2013. The complainant said he did well; an alternative, less positive account is given in the respondent submissions. This conflict must be resolved in the complainant’s favour in the absence of direct evidence of either of the two recruiters present at the meeting, or even a note of the meeting. Where I resolve such conflicts in favour of the complainant, there is no requirement to summons witnesses to confirm such a resolution. It also not necessary to summons witnesses where this is to show a dissatisfaction with the process, rather than to show that it discriminatory. I say this in regard to the email to the respondent Chief Human Resources Officer who became involved following the complainant’s email to her on the 19th December 2013. While the respondent Chief Human Resources Officer replied to this correspondence, and even if the complainant is correct to be dissatisfied with this reply, it cannot amount to discrimination arising from declining to proceed with his interview.

4.8 Having assessed the evidence of the parties, there are two issues to be determined. The first is whether the decision taken by the respondent not to proceed with the scheduled interview on the 23rd October 2013 was a discriminatory act. The second is the weight to be attached to comments made to the complainant by a third party recruiter on or about the 8th November 2013.

4.9 Taking these issues in turn, it is clear from the email sent by the Hiring Manager of the 18th October 2013 and his evidence at the hearing that he did not consider the complainant to have sufficient sector experience for the role. It arose in evidence that there were two candidates who had more sector experience and one was later appointed. It is not the complainant’s case that he was more qualified than these candidates and he fairly acknowledged that while he had significant experience in printing and packaging, he did not have the wealth of experience in the pharmaceutical sector than he had in the IT sector. While it was obviously undesirable that the recruitment agency should have continued with the complainant’s application in the light of the email of the 18th October 2013, and should have given him disingenuous information as to the status of the role, this was not discrimination on grounds of age not to proceed to interview in light of the requirements of the role and the sector experience of the candidates.

4.10 The complainant refers to his conversation with a named third party recruiter on or around the 8th November 2013. He said that this recruiter had empathised with his situation and commented that he thought the respondent wanted someone for 10/12 years. I have not heard from this named third party recruiter and I note that he was included in the witness list submitted by the complainant. I also note, however, that this comment was made as an opinion expressed by a third party recruiter, engaged by a recruitment agency to seek candidates on behalf of the respondent. In assessing the relevance and significance of the comment, I must have regard to the fact that it was made by a third party recruiter and that it was expressed as an opinion. I note that the comment does not directly refer to the respondent as discriminating on the age ground and the complainant has inferred this meaning from the comment. I have regard to the strong evidence of the Hiring Manager of the non-discriminatory reasons for not proceeding with the complainant’s application. Lastly, I have regard to the significance of the comment and I note that it is not mentioned in the complainant’s comprehensive email to the Chief Human Resources Officer of the 19th December 2013. If I am to determine that such a comment is the basis of finding age discrimination at a hearing on the 27th July 2015, surely it should have the first item of the agenda in any complaint raised at the time. While I acknowledge that this was included in the complaint of the 13th February 2014, it was not of such significance for the complainant to include at the time of his complaints to the respondent. Taking these findings together, I find that the comment attributed to a named third party recruiter does not establish a prima facie case of discrimination on the grounds of age.

5. Decision:

5.1 In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subjected to discriminatory treatment on grounds of age.

____________________________________

Kevin Baneham

Adjudication Officer / Equality Officer

14 June 2017