ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013267

Parties:

Complaint:

Date of Adjudication Hearing: 20/07/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred the aforesaid complaint under Section 77 of the Employment Equality Acts 1998-2015 (hereinafter also referred to as ‘the Act/s’), against the Respondent to the Workplace Relations Commission (hereinafter ‘WRC’) on 15th February 2018. Following the referral of this complaint to me by the Director General under Section 79 of the Acts, I inquired into the complaint and gave the Parties an opportunity to be heard by me and to present any relevant evidence. I proceeded to hearing on 20th July 2018. The Complainant appeared without any representation and there was no attendance on behalf of the Respondent. I satisfied myself that a letter dated 18th June 2018 had issued to the Respondent’s Human Resources Manager at the correct address as provided on the complaint form, confirming the venue, date and time of the hearing and had not been returned undelivered. I further noted that the Respondent has not engaged with the WRC at any stage of the process and had not indicated any difficulty attending or seeking an adjournment. Nonetheless, I allowed a further 30-minute period before commencing the hearing. I further confirmed that the Respondent had not made any contact with the WRC post-hearing.

Background:

The Complainant alleged that the Respondent had not afforded him an interview for a security position owing to his Latvian nationality, constituting discrimination on the ground of race contrary to the Employment Equality Act 1998 and he sought compensation in respect of same.

Summary of Complainant’s Case:

The Complainant had not provided a detailed written statement in relation to this complaint as requested by the WRC by letter dated 12th June 2018 but this is understandable in circumstances where he was unrepresented. He gave detailed evidence at the hearing and confirmed that he was of Latvian nationality and had lived in Ireland for fourteen years. He said he had worked for periods as a Security Guard. Upon enquiring about security work with the Respondent, the Human Resources Manager had invited him to an interview at its Dublin office on 30th November 2017 at 2pm as confirmed in an email furnished at the hearing. He said he had arrived at the premises 15 minutes early, checked in with the receptionist and was directed to an office. He knocked on the office door several times but received no response and it was clear that nobody was present. He called the control room and was informed that there was definitely someone there. He was also told to be patient and wait for a while since the person working there might have left for lunch. He could not understand someone having lunch at the same time as a pre-arranged interview but nonetheless waited for a further forty minutes before quitting and leaving. On the same date, he sent a strongly-worded email to the Human Resources Manager but had not received any response to date. He was most upset by the Respondent’s conduct towards him and felt that it was very disrespectful. He speculated that this treatment must have been owing to his Latvian nationality. When asked how the Respondent would have been aware of his nationality, the Complainant stated that it would have been apparent from his curriculum vitae furnished with his job application. He has since found alternative employment and therefore sought an award of compensation.

Summary of Respondent’s Case:

The Respondent did not engage with the WRC in writing or otherwise at any stage of the complaint process, with no attendance on its behalf at the hearing date of 20th July 2018 as detailed aforesaid.

Findings and Conclusions:

The issue for my determination is whether discrimination on the ground of race can be inferred from the alleged conduct by the Respondent in not affording the Complainant an interview for a security position. It is necessary to apply the applicable legal provisions to the factual matrix presented. Section 85A of the Employment Equality Act 1998 sets out the burden of proof which applies to all complaints of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. According to the Labour Court in Melbury Developments Limited -v- Valpeters (EDA 0917): “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.” In relation to a complaint of discrimination on the ground of race, Section 6(1) of the Act provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) 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) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,…”. Section 6(2) defines the race ground: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘‘the ground of race’’),…”. These provisions require demonstration by a complainant of less favourable treatment than a person in a comparable position but of a different race, colour, nationality or ethnic or national origins. Relevant to the instant case, Section 8 further prohibits discrimination by employers in relation to specific areas including access to employment.

In the instant case, I find the Complainant’s evidence to the effect that he attended for a pre-arranged interview on 30th November 2017 at 2pm with the Respondent only to find nobody present in the office where he had been directed, to be wholly credible. However, he has not adduced any evidence to support his contention that the Respondent had declined him an interview owing to his Latvian nationality or that a person in a comparable position but of a different nationality would have been treated more favourably. If the Respondent had been aware of his Latvian nationality from his curriculum vitae and intended to deny him access to employment on that basis, then it does not make sense that the Human Resources Manager would go to the trouble of arranging the interview in question. There are a host of possible explanations for there being nobody present in the office where the Complainant had been directed resulting in the interview not proceeding, including a breakdown in communications along the way. I am also of the view that given the tone of the Complainant’s email, the absence of any response from the Respondent to date is not particularly surprising. Overall, and whilst the Complainant’s upset at the Respondent’s conduct is quite understandable, I am satisfied that this complaint is wholly premised upon speculation without any evidence whatsoever to establish a prima facie case of discrimination on the ground of race.

Decision:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions if favourable. As set out aforesaid, the Complainant has not established in the first instance, facts from which discrimination on the ground of race may be inferred. As the Complainant has failed to establish a prima facie case, no onus shifts to the Respondent to rebut any inference and regardless of the Respondent’s non-appearance at the hearing and absence of any rebuttal evidence, this complaint must fail.

Dated:   21st August 2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Interview - Discrimination on ground of Race - Employment Equality Acts 1998-2015