Complainant

Respondent

Parties

Dr. Atiya K Jones

Cpl PLC t/a CPL Recruitment Agency

Complainant

Respondent

Anonymised Parties

A Job Applicant

A Recruitment Company

Representatives

A. Okonkwo of Cyril and Co. Solicitors

Grainne Donnelly, of Kennedys 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-00013396-001

30/08/2017

This case is a claim under the Employment Equality Act ,1998 regarding alleged discrimination in Securing Employment on the Grounds of Religion and Race.

The Basic Facts stated. The Complainant (then living in Sligo) applied to the Respondent Agency via their Galway Office. Following a brief telephone discussion, she was redirected to the Dublin Office. A senior Executive of the Dublin Office rang her at home in Sligo and left a message in her voice mail answering service. The Dublin Executive was unaware that the telephone had not disconnected and made a number of remarks about the Complainant’s spirituality which were clearly discriminatory. The remarks were recorded on the voice mail system. In subsequent e-mails and telephone calls the Agency in Dublin essentially refused to assist the Complainant and alleged that as she was not a local Irish person they could do little to help her find employment, even of a temporary nature in Ireland. It was clear to the Complainant that her Religious and Spiritual Beliefs (having been discussed in a derogatory manner/the overheard conversation in the Respondents Offices) and her Nationality (A US citizen) were being used to discriminate against her.

The Respondent Agency completely refute the claims. They are a major Recruitment Agency in Ireland, have a long standing and extensive multi-racial and multi nationality client base and never interest themselves or inquire as to the Religious beliefs (if any) of prospective candidates they may put forward to employers for employment either permanent or temporary. Likewise, the nationality of Candidates is not a consideration.

The discussions that they had with the Complainant were perfect professional and non-discriminatory. They had explained the actual employment placement situation in Ireland and given the best advice they could to her. Any other candidate would have been treated in exactly the same manner.

The claim has no basis and fails on the legal grounds as it fails to meet the required standards of proof as set down by Law and is lacking in any required prima facie legal basis.

3:1     The Legal Position: The Burden of Proof

In a case of this nature the basic requirements are

1:     The Complainant has to establish that they were encompassed by the Discriminatory Grounds Being alleged -in this case the Religious and the Race Grounds

2:     The Complaint has to establish a strong inference that facts and or discriminatory actions as alleged actually occurred

3:     The Complaint has to establish, to a reasonable degree that the situation that pertained to them would not have occurred to a Comparator or another person not covered by the Discriminatory Grounds.

Both parties relied on an interpretation of Southern Health Board v Mitchell [2001] ELR 201 where the burden of proof arguments were considered by the Labour Court. The case of Valpeters v Melbury Developments Ltd [201] ELR 64 was cited by the Respondents in the same context.

The Burden of Proof argument is well set out in Employment Equality Law (Bolger, Bruton and Kimber) 2012 Round Hall press. Sections 2: 214 to 2: 222.

In the relevant passages, largely followed below, the learned Authors set out that Section 85A of the Employment Equality Acts imports the burden of proof requirement to be established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant “from which it may be presumed that there has been discrimination in relation to him or her”. It stems from the former Burden of Proof Directive (which effectively codified the case law of the Court of Justice) which is now consolidated into the new Equality Directives.

It is well recognised in the case law that direct evidence of discrimination is infrequent and therefore the rules on burden of proof have to take account of this in providing for effective judicial remedies for aggrieved employees. The issue of the evidential requirements for both Complainants and Respondents has been carefully considered and promulgated in the case law of the Tribunal and the Labour Court. The starting point, as referenced by the learned Authors is the decision of the Labour Court in Southern Health Board v Mitchell, (referenced above) a decision which still remains the leading authority on the shifting of the burden of proof question. The court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“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.”

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Adjudicator at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:

“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 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.”

The argument that mere membership of a protected class (in the case in hand Race and United States citizenship) was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond. The Authors quoted cite the now famous and oft quoted Valpeters v Melbury Developments Limited [2010] ELR 64 Decision

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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. Section 85A 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.

Therefore, the evidence adduced by the Complainant must be of a sufficient significance to raise a presumption of discrimination which then arises for rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment. The mere difference in for example, gender, and a difference in treatment, for example where a comparator was appointed to a position and the Complainant was not, cannot in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination.

3:2   Consideration of the Evidence

3:2:1     The Primary facts – the disputed Phone Call -voice mail message.

The phone message and audio tape of the voice mail left by the Respondent Executive on or about eh 6/7th July was plaid to the Oral Hearing. A Transcript was given in support.

From a careful reading of the Transcript and listening to the Audio tape, which was quite indistinct in parts, there could be no suggestion of any overt reference to her Nationality.

The only issue was a reference to the Complainant being a “Spiritual Guide”.

The question therefore is this sufficient to bring the Complainant under the grounds of Religion under the Employment Equality Act,1998.

The first point that must be made is that being a “Spiritual Guide” is not specific to any one set of Religious Beliefs.

The Labour Court in Department of Justice v Barrett [EET 081] considered this issue and stated

The Complainant told the Court that his beliefs may be viewed as universal but they are of paramount importance to him as a Secular Humanist. While the Court accepts this contention this of itself cannot disclose a cause of action. The beliefs, which the Complainant espouses, are common to every major religion.

It is clear that being a “Spiritual Guide” is common to all Religious systems and in the absence of a stated “Religious Comparator” the claim is hard to sustain. In the Oral Hearing the question was put, for illustration, that if the Complainant had been of Religion A and the Respondent had stated that only members of Religion B would be considered it would have been easy to sustain a Religious Discrimination claim. This was not the case here.

In Department of Justice v Barrett [EET 081] the arguments centred about essentially a comparison between Roman Catholicism (a well know Religion) and Secular Humanism – a more non-specific set of beliefs.

The suggestions that the remarks regarding “being a Spiritual Guide” of a non-specified religion constituted discrimination are hard to sustain as it would imply that the Respondent practiced discrimination against Spiritual Guides generally as opposed to other Religions. The suggestion, that was denied by the Respondent Executive, that she had looked up the Complainant on Social Media websites to establish what her Religion actually was, does not really help, in my view.

The Burden of Proof is to establish that the Complainant was subject to discrimination on the grounds of the Spiritual Guide remarks. I did not thank the evidence presented sustained this argument even at a very low “inferential” level.

Considerable oral evidence was given by the Respondent Executive concerned. She was an experienced Recruitment Agent and absolutely denied that the Religious beliefs of applicants were ever considered by her. The evidence was presented that the Agency had a multi-national and by assumption multi Religious client base. On the balance of probability, I found her evidence convincing. The evidence was open to cross examination by the Legal Representatives of the Complainant.

3:2:2     In conclusion I came therefore to the view that the required standard of proof to base this case on the Religious grounds did not reach the required prima facie standard required.

3:3     The Evidence - The Ethnic Origin claim - being a United States Citizen and accordingly being denied access to employment as grounds of Discrimination.

The nub of the Complainant’s case was that the Respondent placed unnecessary and discriminatory barriers (based on her Non-Irish or United States origins) in her path regarding securing employment.

Oral evidence was given by the Respondent Executive who had dealt with the Complainant and e-mails were exhibited. All evidence was open to cross examination.

The E mail evidence was supportive of the views of the Respondent -they were an Employment Agency that earned their fee income from putting prospective candidates forward to employers. The Complainant while extremely well qualified had United States qualifications and little local Irish experience to fit with an Irish HR Role. The requirements for candidates are generally set by prospective employers and not by the Agency. The Executive maintained that she had tried to professionally put this point to the Complainant and was not in any way being discriminatory.

The e mail correspondence and the oral evidence were effectively, in my view, standard practical advice that could apply to any applicant who did not have prior local previous HR experience seeking a HR position. The open admission that the Agency could not realistically help the Complainant was a fair assessment of the realities of the market for the Agency at that time.

The only hope of an employment breakthrough by the Complainant was by means of canvassing directly with prospective employers. The difficulties regarding lack of local experience would have been identical for all candidates in a similar situation irrespective of any of the Discriminatory grounds. HR work in Ireland can be often characterised by the necessity for a good degree of local cultural appreciations and understandings of often unique unwritten interpersonal interactions. This can only be gained by local experience. The argument that the Agency discriminated against the Complainant against this backdrop does not have the required evidence to support it.

3:4     Conclusions

The claim lacks the required prima facie evidence to support it either on the religion or ethnic grounds. I quote again the Valpeters case [2010] ELR 64

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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.

Accordingly, I must dismiss the claim.

Act

Complaint/Dispute Reference No.

Summary Finding /refer to Section 3 above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00013396-001

The claim fails due to the inability to establish the required prima facie levels of evidence required.