Complainant

Respondent

Anonymised Parties

Customer Service Agent

Service Provider

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-00015648-001

08/11/2017

The Complainant was employed with the Respondent named Company from 5th January 2015 until 7th August 2017. He was paid €2727.00 gross per month and he worked 40 hours a week. He referred a complaint to the Workplace Relations Commission on 8th November 2017 alleging he had been discriminated against on the basis of his age in relation to a promotion competition of 1st July 2017.

The Complainant stated that he joined the Respondent Company in January 2015 where he worked for 9 months as part of a named specified Team. A new Project, named, commenced and he along with 8 or 9 other employees moved from his Team to this new Project where he remained for some 6 months until at his request he moved back to his previous named Team.

A position became available and the Complainant applied on 3rd November 2016. There were 11 employees interviewed but the Complainant stated he was not interviewed and he was informed he was not in his current position for the required 12 months service. He was informed of this by a named HR Business Partner and by a named Talent Recruitment Specialist. The Complainant sent an email to the HR Business Partner on 13/10 /2016 in relation to this issue and there was an exchange of emails the same day between the Complainant and the named HR Business Partner. The Complainant stated that he had separate meetings with both the named HR Business Partner and the named Talent Recruitment Specialist. They argued the issue as to what constitutes 12 months and the Pillar. The successful candidate had only 10 months in his current position and at this meeting the Complainant stated he was informed that this employee got the job as he was in danger of being made redundant.

One position was advertised on 9th May 2017. The Complainant applied for the position but received the same response he had received in relation to the first interview in 2016, namely that he did not have the required 12 months service in his current Pillar. He sent an email on 29th May 2017 to HR Admin Services in relation to this. He got a response on 30th May 2017 that he should contact the Talent Team dealing with this recruitment. There was a further exchange of emails on 6th June 2017 with a named person and again on 7th June 2017 following which he withdrew his application for the position. The Complainant stated that he was aged 38 years and that another employee, named, applied, he was aged 29 years, was in the same position as the Complainant in relation to the alleged rule, but he was interviewed.

The Complainant decided to leave the Respondent Company and he had a meeting with the Head of Talent Acquisition, named, on 26th June 2017 where he was informed that he should have been admitted to the first Interview process but he stated he was not offered any explanation as to why he was not admitted. There was no written response following this meeting. He gave notice of termination and he left the Respondent Company on 7th August 2017.

The Complainant forwarded an email he referenced during the Hearing and this was forwarded to the WRC.

The Complainant is alleging he was discriminated against on the grounds of his age in relation to two applications for promotion posts – one in October 2016 and the second in May 2017. The Complainant was 36 years of age when he applied in October 2016 and 37 years of age when he applied in May 2017. At that time, he worked in a named Pillar. In the first application the successful applicant was 28 years of age and the ages ranged from 23 to 36 years of age.

In the second application the successful candidate was 30 years of age and the applicants range was from 27 to 42 years.

There are five Pillars in the Company – named. When the Complainant applied for the first position in October 2016 he was refused access as he was not 12 months in his current role for a position outside the Pillar in which he currently worked. In the second application the Complainant was initially refused as he had applied with the same email address within 12 months of being rejected for the first post. This was due to a computer glitch and later the Company offered the Complainant an interview which he rejected on 10th July 2017 and stated that he was resigning from the Company for another job opportunity outside of the Respondent.

The Respondent accepted in relation to the Complainant’s first application in October 2016 that this was a misrepresentation of the Company Policy by the individual concerned but had nothing to do with the age of the Complainant. The person who was successful was less than 12 months in his current role but that an exception had been made to a number of applicants as they were about to be made redundant. This is in line with Company Policy which states “On rare occasions where driven by operational needs or in redeployment situations where the preservation of employment is paramount, exceptions to the above may be approved by the HR Manager following discussion and agreement with the relevant hiring manager”. There were 11 applicants for the role ranging in age from 23 years to 36 years with the successful candidate being 28 years.

In relation to the second application in May 2017 there were six applicants ranging in age from 27 years to 42 years. The successful applicant was 30 years. The system does not permit someone to be considered for a vacancy where they have been unsuccessful in an application for the same role in the previous 12 months. The system recognised the Complainant through his email address. While two unsuccessful candidates were permitted to apply, they both used a different email address

The Complainant contacted the HR Admin Team on 29th May 2017 where he requested he be supplied with the correct path to lodge his grievance. Following further emails and he was offered an interview on 1st June 2017 but he informed the Respondent on 2nd June 2017 he was withdrawing his application for the post.   He sent an email on 6th June 2017 to a named Operations Lead alleging he had been treated less favourably than another employee but did not cite age as the cause of the different treatment. The Complainant met with a named HR Business Partner on 12th June 2017 and he submitted a grievance complaint to the named Talent Acquisition Manager on 22nd June 2017. The Respondent stated they understand a meeting did take place with this Manager but there is no record as this person has left the employment of the Respondent. The Complainant tendered his resignation on 10th July 2017 and left the employment on 7th August 2017.

The Respondent argued they have an Equal Opportunities Policy in place – copy provided.

The Respondent cited a n umber of decisions of the Labour Court in support of their contention there had been no discrimination on the grounds of age.

The Respondent was requested to provide the Advertisements for the post in 2016 and 2017 and this was forwarded by email dated 28th March 2018.

On the basis of the evidence, written submission from IBEC and evidence submitted by the Complainant and following questioning at the Hearing I find as follows –

I have examined in detail the (named) Recruitment and Selection Policy of the Respondent which provides as follows – Internal Opportunities Application Criteria at Section 3 of the Policy which states “Employees must meet the following criteria before being eligible to apply for internal opportunities within their own business pillar and across all business pillars as listed further below. Have 12 months service in their current role at the time of application for the role”. Section 3.1 confirms there are three named Pillars with different teams working in each Pillar. Section 3.2 Exceptions provides “On rare occasions where driven by operational needs or in redeployment situations where the preservation of employment is paramount, exceptions to the above may be approved by the (named) HR Manager following discussion and agreement with the relevant hiring manager”.

Both Parties confirmed at the Hearing that the Complainant did have the required 12 months service within the same Pillar and therefore should have been eligible for the post in October 2016. There was an exchange of emails between the Complainant and named “Managers” of the Respondent in relation to the decision not to admit him to the process. These named individuals should have been aware of the Policy as outlined above that the Complainant did meet the eligible criteria to apply for the post. I note there were 11 applications for the post ranging in age from 23 years to 36 years where there were two applicants, including the Complainant. The successful candidate was 28 years and while he did not have the required 12 months service, he was covered by Section 3.2 of the Policy as quoted above. The Respondent did confirm in their written submission that a mistake had been made in relation to the Complainant’s application and the interpretation of the 12-month rule.

In relation to the position of May 2017, the Complainant was advised that where an applicant had been unsuccessful in a previous competition within the previous 12 months they are precluded from applying. However, I note that this “policy” is not covered in the Recruitment and Selection Policy of the Respondent Company. However, I note that when the Respondent became aware of this error they offered the Complainant an Interview by email dated 1st June 2017. The Complainant responded by email dated 2nd June 2017 and this is confirmed in an email stating “I have received a message from (the Complainant) letting me know he is withdrawing his application for the role (named)”. I note that at this time the Complainant was 37 years of age. The successful candidate was 30 years old with three applicants being older and two being younger.

Section 6(2) of the Act provides that discrimination shall be taken to occur “As between two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are (f) that they are of different ages”.

Section 85A (1) provides as follows – “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

On the basis of the evidence and my findings above I find that the Complainant has not established a prima facie case of age discrimination and therefore has not satisfied Section 85A of the Act.  

On the basis of the evidence, my findings above and in accordance with Section 79 of the Employment Equality Act, 1998 – 2015 I declare that the Complaint of discrimination on the age ground is not well founded as the Complainant has failed to establish a prima facie case of discrimination as required by Section 85A of the Act.

Age Discrimination – promotion competitions – Section 85A Burden of Proof not established – complaint not well founded.