Complainant

Respondent

Parties

Jane Sheridan

Declan Mannion Dv Mannion Accountants

Representatives

Shane MacSweeney MacSweeney & Company Solicitors

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-00012007-002

20/06/2017

The Respondent operates in the business services sector and has been trading for almost 15 years. The Respondent also operates a second business, in conjunction with his wife. The second business operates from the Respondent’s main office, from where his primary business is transacted.

The Complainant was employed by the Respondent between 24 May 2017 and 3 June 2017.

Background:

In evidence, the Complainant stated that, following completion of the first year of a related technical course, she started applying for jobs. She stated that she got two job offers in the same week, one of which was from the Respondent. The Complainant stated that she decided to accept the position with the Respondent, which had been offered to her at interview.

According to the Complainant, she was asked two questions at her interview with the Respondent, which she alleged she was uncomfortable with. The Complainant identified the questions as (1) was she in receipt of benefits and (2) what was a family status. The Complainant indicated that, after advising the interviewers of her discomfort in answering the questions, she proceeded to do so.

The Complainant stated that she sent an email confirming her acceptance of the job offer on 17 May 2017. The Complainant further stated that she commenced the job on 24 May 2017. According to her evidence everything proceeded well, she was fully integrated into the office and began her training. According to the Complainant's evidence, by 30 May 2017, she had provided her bank details and also a copy of her P45, from a previous employment, to the Respondent.

According to the Complainant, on 31 May 2017, the Respondent called her into the office and queried why she had submitted a P45. The Complainant stated that she explained to the Respondent that, as she was employed within the past 12 months, he may require the document. The Complainant stated that the conversation then took a significant turn.

The Complainant stated that she explained to the Respondent that, as she was in receipt of payment from the Department of Social Protection (DSP) for 9/10 months, she would not be eligible to receive a "JobsPlus" grant for him. According to the Complainant, the Respondent's attitude changed significantly at this point and he became very cold and callous towards her. She alleges that the Respondent informed her that she had cost the company €7,500 and he queried what she was going to do about it. The Complainant stated that she was taken aback at this turn of events. She explained that she couldn't do anything about it and pointed out that the job advertisement never stipulated that the candidate needed to be eligible for such grants.

According to the Complainant's evidence, the Respondent became very angry with her and informed her that she needed to go to DSP and sign back on, so that she could try to obtain the grant for him. The Complainant stated that she refused to do so and this appeared to anger the Respondent even more. In further evidence, the Complainant stated that, later that evening, she was working alongside the Respondent's wife/business partner, when the latter said to her that she should think wisely about what the Respondent had earlier requested her to do. The Complainant claimed that she was very unnerved at the events of that day.

According to the Complainant's evidence, when she attended at work the following morning, she advised a senior staff member that she needed to pop out for an hour to look into something that the Respondent had asked her to do. The Complainant stated, in evidence, that she went to the Citizens Information Service, as she anticipated that the Respondent would dismiss her as soon as it became clear that she was not willing to comply with his request in relation to DSP.

The Complainant stated that she received an email from the Respondent on 3 June 2017 (Saturday), informing her that he had decided to withdraw the offer of employment. The email also indicated that the Complainant would receive payment for the days she had worked and she was requested to return the office keys.

Relying on the events as set out above., the Complainant submitted her complaint, as follows:

CA-00012007-002 (Employment Equality Act, 1998)

The Complainant claims that she was discriminated by the Respondent by reason of her Family Status. The Complainant alleges that this discrimination took place by way of a discriminatory dismissal.

Background:

The Respondent stated that his wife/business partner identified a need for additional support in her business. However, she did not have the scope to offer a full-time role to a candidate. As the Respondent himself also needed some administrative assistance, a decision was made to recruit a person who could provide support for both businesses.

According to the Respondent, six candidates (all of whom were female) were interviewed for the position. Of these six candidates, three were eligible for the JobsPlus Scheme, which is an employment incentive scheme, that encourages and rewards employers who employ jobseekers directly from the live register. It is designed to encourage employers and businesses to employ people who have been out of work for long periods. Eligible employers, who recruit full-time employees on or after 1 July 2013, may apply for the initiative.

The interviews for the advertised position took place took place during May 2017, with the Complainant’s interview taking place on 12 May 2017. The interview panel comprised of the Respondent and his wife/business partner. The Respondent contends that the interview proceeded along predictable lines with the role and the split in the work being outlined to the Complainant. According to the Respondent, a discussion then ensued about the Complainant's past experience and skills, as well as details about her technical training.

According to the Respondent the interview was cordial and informal. It was stated that, overall, the interviewers were impressed with the Complainant and found her to be the best qualified candidate. The Respondent further stated that the interview then moved to the issue of whether or not the Complainant qualified for the JobsPlus Scheme. This involved a discussion around the Complainant's prior DSP benefits status.

The Respondent stated that the Complainant appeared to be well versed in the scheme and indicated that she would qualify for same, on the basis that she was on an applicable social protection payment operated through the local Education and Training Board (ETB). The Respondent stated that he was familiar with this as he had previously employed staff through the JobsPlus Scheme who had gone on to successfully complete such training.

According to the Respondent, there was no question but that the Complainant clearly understood that the business would be applying for the relevant grant and that this was a significant consideration in deciding to employ her. The Respondent stated that, on the basis that the Complainant appeared to be appropriately qualified and would qualify for JobsPlus Scheme, she was duly offered the position before conclusion of the interview.

The Respondent stated that specific details in relation to the position, such as hours of work, hourly rate, study leave and funding were discussed with and accepted by the Complainant. However, the Respondent stated that the Complainant emailed him later that day looking to renegotiate her hourly rate, on the basis that she did not require funded study leave/tuition. According to the Respondent, he duly agreed to this proposal. It was also agreed that the Complainant would commence work on 24 May 2017.

On 31 May 2017, some seven days after she had commenced work, the Complainant was provided with a Contract of Employment. On that day, the Respondent's wife asked the Complainant for her assistance in processing the JobsPlus Scheme grant application. According to the Respondent, at that point, the Complainant disclosed, for the first time, that she was not in fact eligible for JobsPlus Scheme. She indicated that her ineligibility arose from the fact that she wasn't a full year on the unemployment register.

The Respondent admitted that he was somewhat annoyed at this turn of events and subsequently spoke with the Complainant to express his disappointment in this regard. The Respondent stated that he was particularly disappointed given that the Complainant had informed him at interview that she was eligible.

The Respondent stated that he requested the Complainant to go to the local DSP office to see if she could somehow maintain her eligibility status. The Respondent confirmed that he was, in essence, requesting the Complainant to check the position and see if there was some mechanism of securing the grant. However, he categorically denied that either he or his wife/business partner had requested the Complainant to do anything unlawful or unethical.

According to the Respondent, there was some to-ing and fro-ing in relation to this matter before the Complainant indicated that she might be willing to further investigate her eligibility, if there was something in it for her. The Respondent stated in evidence that the Complainant suggested that they might share the grant. However, the Respondent stated that he indicated to the Complainant, in the clearest terms, that under no account could he or would he entertain such a proposition. The Respondent claimed that he further noted to the Complainant that the grant was intended for the employer alone.

In further evidence, the Respondent stated that on 2 June 2017 (Friday), the Office Manager of the Respondent’s business received an email from the Complainant stating that she was feeling unwell and would not be in that day. The Respondent stated that when the email was forwarded to him, he was concerned for the Respondent and duly emailed her back, requesting that she would give him a call. The Respondent stated that he received a reply from the Complainant to the effect that she had an appointment in DSP at 12:40pm and would call him after that.

According to the Respondent, he spoke with the Complainant later that afternoon (circa 2/2:30pm). The Respondent stated that the Complainant adopted a very confrontational tone during this discussion and accused him of putting her in an unethical situation and telling him that his request in relation to the JobsPlus Scheme was improper.

The Respondent stated that he emphatically denied the Complainant's allegations in this regard. He stated that he informed her he had selected her for the position on her suitability, but that the fact that she was qualified for the JobsPlus Scheme Grant was a relevant factor. He also indicated to her that he wanted to try and establish her eligibility, given the clear monetary imperative to do so.

According to the Respondent, the Complainant then told him that she should not be asked to do the legwork in establishing her status. The Respondent stated that he replied that he was operating a small business, didn't have a dedicated HR function/person and, consequently, it was entirely appropriate that he request her to make these enquiries. He further stated that he pointed out to the Complainant that this was valuable experience and akin to the type of task she would/could be asked to undertake as part of her work.

The Respondent stated that he was very taken aback by the critical and confidential tone adopted by the Complainant. According to the Respondent's evidence, he came to the view that the Complainant, herself, had decided that she no longer had an interest in the role and he was quite clear that the relationship had been fatally and irretrievably damaged. Accordingly, having reflected on the matter overnight, the Respondent emailed the Complainant on Saturday, 3 June 2017, advising her that he had decided to withdraw the offer of employment.

According to the Respondent, the Complainant responded with a "thank you" message. The Respondent also stated that the Complainant was subsequently paid in full for her eight days employment with the company.

The Respondent stated that he then received a letter dated 15 June 2017, from the Complainant's solicitors alleging, inter alia, that she had been unlawfully discriminated against on the grounds of family status and, in the event that the Respondent failed to address the matter, it was proposed to pursue it further. The Complainant subsequently lodged a complaint with the Workplace Relations Commission on 20 June 2017.

The Respondent made the following submissions, in response to the complaint:

In the first instance, the Respondent strenuously denied that he asked the Complainant about her "family status". The Respondent's representative stated that the term "family status" is a legal concept and not the type of expression one would typically use, outside of a formal, legal context. The Respondent then went on to provide evidence in relation to what he described as an informal discussion which took place, post interview, with the Complainant.

According to the Respondent's evidence, following the conclusion of the job interview and after the Complainant had been offered and had accepted the position, the parties engaged in some casual conversation. The Respondent stated that he queried whether or not the Complainant was local or if she had family in the locality. According to the Respondent, this was done in an entirely unobtrusive, informal and light-hearted manner.

The Respondent further stated that, in the general discussion that followed this query, the Complainant volunteered significant detail in relation to difficulties she encountered with her penultimate employer. The Respondent stated that, while they were clearly empathetic to the Complainant in relation to the situation she had described, they were surprised and uncomfortable at the relatively intimate disclosure and the show of emotion that accompanied it.

The Respondent further stated that the Complainant volunteered that she was married to a local man and also mentioned that her father-in-law operated a well-known business in the area. According to the Respondent, having disclosed all the foregoing information, the Complainant remarked in a light-hearted way that they should not be discussing these types of issues and then joked that she would let it go this time.

According to the Respondent, the conversation then moved to discussion about his wife's family and she (his wife) ended up disclosing that she cared for some members of her family, one of whom was terminally ill. It is stated that the Complainant then disclosed that she had lost a family member to the same illness.

In further submission, the Respondent's legal representative stated that a question concerning family status is not "illegal" per se. While it is admitted that discrimination on grounds of family status is unquestionably unlawful, it was suggested that asking a question, which in this case is denied, concerning a party’s family status would only be unlawful if it directly or indirectly led to a discriminatory act. It was further stated that a nexus between any alleged discrimination and the alleged question is glaringly absent from the Complainant's complaint.

In responding to the Complainant's complaint in this regard, the Respondent’s legal representative made a significant legal argument, supported by reference to several legal cases.

In conclusion, the Respondent's representative suggested that it was apparent from the correspondence and from the Complaint Form, that the Complainant holds a poisoned view of the Respondent. However, it was stated that, the fact that some oblique reference was made to her family life, at the conclusion of the interview, is not prima facie evidence of discrimination on the grounds of family status.

It was further stated that, if the Complainant seeks to compare herself with the other 59 candidates for the position, or indeed the other five interviewees, the material question to ask is whether or not there was any detriment that might be capable of constituting discrimination. It was further contended that, even if the Complainant’s allegations concerning the sequencing and/or the initiation of the discussion around her personal life were factually correct, the fact remains that she actually secured the position, notwithstanding her alleged family status. It was stated that to the extent that she tries to contrast her treatment, with that apparently offered to the other applicants, it is apparent that her disclosure had no adverse effect on her treatment and/or the offer of employment. Consequently, it is contended on behalf of the Respondent that there can be no discrimination, as defined in the context of Section 8(1) or 8(6) of the Act.

It is further contended that, to the extent that it may be alleged that the issue of her family status was a factor in her dismissal, it is patently clear from her own narrative and from that of the Respondent that the breakdown of the relationship related entirely and exclusively to the fallout from the parties’ discussion around the Complainant's JobsPlus Scheme eligibility. The Respondent contends that this is wholly unrelated to her alleged family status and essentially was a purely financial matter.

According to the Respondent, the relationship with the Complainant soured significantly in the course of the interactions in relation to the JobsPlus Scheme and her eligibility for same. The Respondent stated that, just eight days into her employment, there had been an irretrievable breakdown of the trust and confidence that is such an essential part of any working relationship. According to the Respondent, as this did not bode well for the future, he elected to terminate the Complainant's contract.

The Complainant’s complaint is made under Section 77 of the Employment Equality Act 1998. She alleges that she was discriminated on the grounds of her family status with regard to her dismissal for discriminatory reasons. The Complainant based this complaint on her allegation that, at her interview for the job, she was asked serious questions in relation to her family status and the extent to which she was in receipt of benefits from the Department of Social Protection.

Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, will the burden of proof pass to the Respondent to prove the contrary.

The Labour Court elaborated on the interpretation of Section 85(A) in Melbury v Valpeters (EDA/0917) where it is stated that the section: “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.”

Having carefully considered all the evidence presented by the Complainant in her Complaint form and in her oral evidence at the Hearing, I am not satisfied that the Complainant has met the requirements placed on her by Section 85 of the Acts to demonstrate a prima facie case of discrimination.

The basis of the Complainant's complaint in relation to a parallel claim under the Industrial Relations Act was that she had been dismissed because she had refused to lie and/or act fraudulently as allegedly requested to do by the Respondent, with regard to her DSP benefits situation. Such a submission is clearly at odds with the contention made in relation to her allegation of discriminatory dismissal under the Employment Equality Acts.

In addition to the evidence set out in her complaint form, the further submission provided by the Complainant, during the oral Hearing, clearly set out the reason for the dismissal as being related to her eligibility for the JobsPlus scheme and its impact on the Respondent receiving the grant in relation to same. In that context, there can, therefore, be no basis to contend that her dismissal related to her family status, arising from allegedly inappropriate questions put to her at her job interview.

Secondly, having carefully reviewed all of the submissions in relation to the equality claim, I can find no evidence that an act of discrimination actually took place and/or that the Complainant was disadvantaged in any way with regard to her family status.

The evidence presented by and on behalf of the Respondent clearly suggests that, while the discussions between the Complainant and the interview panel did stray into the area of family background, it clearly took place at a conversational level, rather than as an interview question. The evidence also suggests that the Complainant engaged willingly in this conversation and, in fact, offered unsolicited information, which the interview panel found unusual and, some of which made them uncomfortable.

Of greater significance, is the evidence which indicates that the conversation in question took place after the interview had concluded. The evidence put forward by the Respondent clearly indicates that the position had been offered to the Complainant before any discussion took place in relation to her family background. The Complainant confirmed in her evidence that the job offer was made at interview.

Consequently, taking all of the above into consideration, it is clear that the Complainant suffered no detriment and was not disadvantaged in any way by any conversation that may have taken place with regard to her family status.

Therefore, on that basis, I find that the Complainant has failed to establish that an act of discrimination has taken place and, as a result, has failed to comply with Section 85 of the Act.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant failed to establish a prima facie case of discrimination by the Respondent on the ground family status and, as a result, failed to shift the burden of proof to the Respondent.

Consequently, the Complainant's complaint in this regard is not upheld.

Employment Equality

Family Status