Complainant

Respondent

Anonymised Parties

Job Applicant

A Crèche

Act

Complaint Reference No.

Date of Receipt

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

CA-00013884-001

13/09/2017

The complainant applied for the position of Childcare Manager but did not receive an interview.   She claims that she was discriminated against on the basis of her family status, namely, that her sister was a former employee of the respondent who is also taking a claim against the respondent.

The complainant applied for the position of Childcare Manager. She had previously worked with the respondent but had resigned in March 2017. She believed she met the criteria for the role but that the wording on the advert was ambiguous. She was not called for interview and requested and received the scoring matrix.   She outlined that the scoring matrix was not signed and was flawed, and did not specifically say that applicants needed to have experience as a manager in a childcare setting. She outlined disparities in the ‘desirable’ and ‘essential’ requirements part of the advert.

She outlined that her sister has made a complaint against the respondent in relation to constructive dismissal and that because of that complaint and because the complainant will be a witness to that case, she has been discriminated against on the basis of her family status.

Evidence was provided of copies emails she had received anonymously whereby an employee of the respondent, Ms A, had emailed a board member Mr B, asking if they had to interview the complainant. Mr B had replied by email that “you do have to interview” and that “any appointment needs to be approved by the Society Board”. The complainant put forward that this suggested they never wanted to employ her and that she would be blocked by the board.

The respondent outlined that the complaint under family status is misconceived and that the complainant does not meet the criteria under the definition of the Act, namely, that a relationship with a sister is not covered under Section 2 of the Act.

Notwithstanding that, the respondent outlined that the complainant’s application for the role was rejected on the basis that she did not meet the essential criteria namely a requirement to have “3 years’ experience in childcare with a minimum of 1 in a management role”.   Although, the complainant had 3 years’ experience in childcare, she did not have the 1 year required in a childcare management role and her alleged management experience including as a room leader did not meet the criteria. There were four other applicants for the role and only one individual satisfied all criteria.

It was submitted that the complainant failed to establish a prima facia case with regards to her claims of alleged discrimination and failed to discharge the burden of proof.   It was also outlined that she failed to identify a comparator either actual or hypothetical merely stating that she believed that she was discriminated against.

Case law cited including Giblin v Bank of Ireland Asset Management Ltd (DEC E/2011/161) Adejumo v Noonan Services Group Ltd (E2015-023) and Melbury Development v Arthur Valpetters (EDCA0917).  

The complainant claims that the reason she did not get called for interview was owing to her relationship with her sister who is taking a claim for constructive dismissal against the respondent. The complainant defines this as her “family status” and that this amounted to discrimination against her contrary to the Employment Equality Acts.

Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. 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. Southern Health Board v Mitchell [2001] ELR 201 sets out the three stage test: - 1. “The complainant must prove the primary facts upon which they rely is alleging discrimination, 2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination 3. If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.”

Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts 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.”

A review of the primary facts is necessary to establish if the complainant is covered by the relevant discriminatory ground regarding the allegation of discrimination.   There are 9 specific prohibited grounds of discrimination under the Equality Acts as follows:

The Gender Ground

The Civil Status Ground

The Family Status Ground

The Sexual Orientation Ground

The Religion Ground

The Age Ground

The Disability Ground

The Ground of Race (includes race, colour, nationality or ethnic or national origins)

The Traveller Community Ground

Under Section 2(1) “family status” means responsibility—

( a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

( b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

No evidence was presented at the hearing in relation to “family status” as defined under Section 2(1) of the Act and therefore the Complainant has not established the burden of proof necessary to establish a prima facie case and the complaint falls.

I find that the complainant has failed to establish a prima facie case of discrimination on family status grounds, and I dismiss the complaint.

Equality, Family status, discrimination, job applicant