ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008942

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/12/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,( 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

The complainant referred a complaint to the Workplace Relations Commission on the 12th June 2017 alleging discrimination on the grounds of age .

Complaint submitted to the WRC on the 12th June 2017 the respondent discriminated against him on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8(1) of those Acts. My investigation of the complaint commenced on 19th December 2017, the date the complaint was delegated to me.

Background

The claimant submitted that;

The Interview was done remotely via Skype. The claimant submits that he was unlawfully disqualified from the recruitment process based on his age. He submitted he was asked specifically about the logic of the years on his resume in relation to his college graduation to infer to his age. The claimant stated that he was informed the fact that he wants to retire in 5 years weighted on the decision not to progress him to the next stage of the interview process. The claimant further submitted that when he made a formal complaint that he was rejected for another interview the only alternative presented by the respondent was to have a solicitor present during the re-interview, which he encouraged, and still didn't happen. That he was unlawfully disqualified from recruitment process based on his age. He had strong reasons to believe the only reason he was removed from the recruitment process with the respondent was on the aforementioned grounds.

Respondent’s position

The respondent submitted that in the complaint form as submitted by the claimant that item A pages 5 by the claimant contains information which was part of an agreed “off the record” phone conversation between the parties. It was stated at the outset of this conversation and was expressly agreed between the respondent and the claimant that the details of that discussion would be held off the record and on a “without prejudice” basis.

The respondent categorically recalls that this was agreed and that elements of this conversation have now been used in the complaint letter which has been submitted by the claimant to the Workplace Relations Commission.

The interview notes that were documented by the respondent have been kept on file and have been communicated to the claimant.

The respondent submitted that the claimant while experienced, was not what the respondent was looking for at that stage. The respondent further submitted they have received aggressive emails some of which were without prejudice.

The respondent would like to highlight their concerns that the Workplace Relations Commission is being used by the claimant in an inappropriate manner to cause difficulty and expense for them.

Findings

The hearing took place on the 19th December 2017.

I find that the interview took place as stated by skype however during the hearing the respondent confirmed that he was on his own however the claimant stated that there was another person in the room where the skype interview was taking place.

I find the fact the claimant did not inform the respondent there was another person with him in the interview room unprofessional and inappropriate.

I find the claimant did not provide a relative comparator.

I find;

1. That person in the room did not attend the hearing as a witness
2. The claimant did not take any notes/minutes during the course of the interview.

I find that the respondent had given the claimant copies of the notes of his interview

I find that several emails were exchanged between the parties setting out terms of a settlement some of which were without prejudice and the contents cannot be used.

In section 8 (4) is being applied or operated, the complainant has failed to establish liability on the part of the respondent for the alleged discriminatory actions on the grounds of age. 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 the complainant must prove on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination       

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 6(1) of the Employment Equality Acts, 1998 -2015 provides as follows; - (1) 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 grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’

Article 6(1) of Directive 2000/78 provides as follows – Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market, and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”

In accordance with Section 85A, I find that the claimant has failed to establish a prima facia case

Decision

I have investigated the above complaints and make the following decision in accordance with section 79 (6)of the Employment Equality I declare that the complaint is not well founded and falls.

Dated:   1st August 2018.

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Key Words: