FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ALEXION PHARMA INTERNATIONAL TRADING (REPRESENTED BY MS LORNA LYNCH, B.L., INSTRUCTED BY A&L GOODBODY, SOLICITORS) - AND - ALAN BERMINGHAM DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. DEC-E2017-047.
BACKGROUND:
2. The Decision of the Adjudication Officer was appealed to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 6 February 2018. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Mr Alan Bermingham against the Decision of an Adjudication Officer (formerly an Equality Officer) DEC-E2017-047 in his claim of discrimination on the ground of age. He claimed that he suffered discrimination on the ground of age in relation to access of employment within the meaning of section 6(2)(f) of the Employment Equality Acts 1998-2011 ( the Acts).
For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Alan Bermingham will be referred to as “the Complainant” and Alexion Pharma International Trading will be referred to as “the Respondent”.
The Complainant referred his case to the Equality Tribunal on 7thMarch 2014. A hearing was held on 27thJuly 2015. The Adjudication Officer issued his decision on 14thJune 2017. On 18thJuly 2017 the Complainant appealed the Adjudication Officer’s Decision. The appeal came before the Court on 6stFebruary 2018.
Background
The Respondent is the Irish affiliate of Alexion Pharmaceuticals Inc., a global biopharmaceutical company, which established operations in Ireland in June 2013. At the start-up phase in 2013 the Respondent was engaged in active recruitment to establish the workforce which was facilitated by appointed recruiters. The Respondent currently employs approximately 342 employees in Ireland.
The Complainant was 57 years of age at the material time. He applied for a position of Artwork Specialist with the Respondent on 14thOctober 2013 through CPL Resources (the Agency). The Agency is not impleaded in the case. That same day he received a telephone call from the Agency and, following a conversation about his application, the Agency indicated that it was referring his application to the Respondent’s Hiring Manager. The Agency made a number of enquiries of him concerning any required notice he may have to give, when could he start if offered the position, if he had any holidays booked, etc. The Agency forwarded his application to a more senior colleague within the Agency who was charged with submitting candidates to the Respondent’s Hiring Manager which she did by email on 17thOctober 2013. The Hiring Manager responded on 18thOctober 2013 and stated the following: -
- “Not sure that the candidate is suitable for the role. Although he has great artwork experience he has very little experience managing the specific artwork process in a multi-national.
Would Ian be able to do a phone screen?”
Later that day the Complainant was informed that he had been selected for a telephone interview with the Respondent, which was due to take place on 23rd October 2013, duration thirty minutes. Following this notification, he was informed by the Agency that he was invited to attend an Interview Preparation Session in the Agency to be conducted by two Agency employees on 21st October 2013. He was informed that the purpose of this session was to go through the types of questions he would be asked at the interview with the Respondent and to assist him to prepare some strong answers.
The following day, 22ndOctober 2013, the Complainant received a telephone call from the Agency to inform him that the job was on hold as the Respondent were recruiting for a number of other roles and this role was not a priority.
On 31stOctober 2013 the Complainant discovered that the position was advertised by another recruitment agency. He applied, however, that agency said that they could not progress his application as it was being attended to by the first agency.
Then on 4thNovember 2013 he sought clarification from the Agency as to why the position was being advertised by another recruitment agency. He received a telephone call in response and was informed that the position was on hold as the Respondent was interviewing two candidates with backgrounds in the pharmaceutical industry.
Later that day he received telephone calls from two senior employees in the Agency who informed him that his scheduled interview with the Respondent would not proceed as it required candidates to have previously worked within the pharmaceutical industry.
He informed both that he intended escalating his grievance with the process to the Respondent’s Chief HR Officer in the US. That same day he also received a telephone call from the Respondent’s HR Director, based in Lucerne, Switzerland, who reiterated the position that the Respondent stipulated that candidates for the position must have previously worked within the pharmaceutical industry in order to be considered.The Complainant described this call as “an extremely heated call” in which he presented the same arguments he had to the two previous callers from the Agency.
On 8thNovember 2013 the Complainant was alerted to the position being advertised by a third recruitment agency. He submitted his application but was informed that, as the first Agency was handling his application, it could not proceed with him as a candidate. A similar situation arose on 11thNovember 2013 when a fourth agency alerted him to the position and again informed him that it could not progress his application for the same reason.
On 16thDecember 2013 the Complainant sent a letter to the Respondent’s Chief HR Officer in the US complaining about the recruitment process and raised his concerns around the Respondent being an equal opportunity employer and suggested age discrimination was the reason behind the cancellation of his scheduled interview with the Respondent. He received an email reply on 23rd January 2014. This stated,inter alia,that his interview with the Respondent’s Manager should not have been scheduled before he was interviewed by the Agency. She said that“What occurred was outside of the desired process"as an interview with the Respondent should not have been set up prior to the Agency having a formal first round interview with him.She made no comment on his suggestion of age discrimination.
Summary of the Complainant’s Case
The Complainant submitted that his candidacy for the role of Artwork Specialist with the Respondent ended on the day he applied for the job. He contended that at the time of interviewing him the Agency acted in an impartial and objective manner and indicated that he was a serious contender for the position and wished to submit him for consideration to the Respondent. However, he maintained that when the Agency forwarded his application to senior colleagues in the Agency his candidacy ended.
In his submission to the Court, the Complainant alleged that, despite the Agency’s stated intention to forward his application to the Respondent on 14thOctober 2013, it had no intention of doing so. However, he alleged that as the week progressed, no younger credible candidates emerged and as it would reflect poorly on the Agency to have submitted no candidates to the Hiring Manager, it resurrected his candidacy towards the end of the week, not with a view to his candidacy succeeding, but to use him as a token candidate so as to be seen to be submitting an applicant to the Respondent.
Furthermore, he alleged that in order to use him, it had to misrepresent him which he claimed it did by withholding two vital documents in support of his application, his Cover Letter and the Candidate Profile Form. Both of these documents contain a list of pharmaceutical companies he had managed artwork for and, as the job on offer was about managing pharmaceutical artwork, withholding these documents from the Respondent was intended to damage his candidacy.
He surmised that, against the Agency’s expectations, when on the morning of 18thOctober 2013 the Respondent’s Hiring Manager confirmed that he wished him to be interviewed for the position, the Agency engaged in a deeply cynical exercise while it tried to figure out how they could extricate themselves from the difficult situation their duplicity towards their own Client had placed them in, so they delayed conveying the 'good news' that he had been selected to interview with the Respondent until after 4pm that afternoon. He alleged that the Agency then staged a 'mock' Interview Preparation Meeting and, in order not to arouse his suspicions, they invited him to attend this meeting while at the same time they confirmed he had been selected to interview with the Respondent. He said that neither of the Agency’s representatives attending the Interview Preparation Meeting possessed the subject-matter expertise to help him prepare for his interview with the Respondent as promised.
He contended that on 22nd October 2013, when the Agency informed him that the position he was scheduled to interview for the following day had been placed 'on hold', it was being disingenuous as it couldn't divulge the real reason behind the cancellation of his interview. He claims that several ‘excuses’ were proffered for the cancellation.
The Complainant suggested that due to the urgency and pressure on the Agency to find candidates for the role, within a week of informing him that the position had been placed 'on hold', in their desperation to attract candidates, they took the unprecedented step of outsourcing the recruitment for this position to a rival recruitment agency.
Summary of the Respondent’s Position
Ms Lorna Lynch, B.L., instructed by A&L Goodbody, Solicitors, on behalf of the Respondent, denied the Complainant’s allegationsand declared that his age was not taken into consideration when determining whether or not to progress his application for the position. She said that the Respondent did not know the Complainant’s age at any time during the recruitment process. She said that the Respondent subscribes to the company’s Global Code of Conduct, which expressly forbids discrimination based upon age or any other legally protected status.
Ms Lynch said that it was important to note that the Respondent did not manage the recruitment process to fill the vacant position applied for by the Complainant. This process was outsourced to the Agency, which in turn used the services of five other recruitment agencies, to find potential candidates for the vacancy of Logistics Specialist, Artwork Management.
She submitted that the Complainant had failed to establish facts from which it may be presumed that he has been discriminated against. She said that the Respondent has a diverse employee age demographic – 3% of employees are under 30 years of age; 41% of employees are in the age group 30 - 40 years of age; 42% of employees are in the age group 40 - 50 years of age and 13% of employees are over 50 years of age.
Ms Lynch said that the Respondent had furnished the Agency with the selection criteria for the position of Artwork Specialist and these clearly stated that"experience with management of pharmaceutical product artwork across multiple regions"was a required qualification for the position. She said that the reason the Complainant was not advanced in the recruitment process was that, having reviewed his CV, the Hiring Manager immediately queried his relevant experience and ultimately decided not to proceed to interview him for the position as he had insufficient experience in the pharmaceutical sector. This fact which made him unsuitable for the role in question, together with the fact that the Respondent had received applications from two candidates with significant relevant experience, were the reasons he was not advanced in the competition.
Ms Lynch disputed the Complainant’s allegation that the Agency wilfully withheld documents from the Respondent in support of his application. In her submission, she said that it was in line with the Agency's practice not to include the Complainant's Candidate Profile Form or Cover Letter.
She said that the Respondent's Hiring Manager did refer to the possibility of another Manager doing a phone screen but ultimately, as there were two candidates with more relevant experience, it was decided not to proceed with the phone screen interview. Of the other two candidates, one of whom was successful in the recruitment process, and had eight years' experience as an artwork specialist in the pharmaceutical industry at the time. Furthermore, she said that the Complainant had not argued that he had more experience in the pharmaceutical sector than the other two candidates.
Ms Lynch stated that the Respondent did not instruct the Agency at any time to inform the Complainant or any other candidate that the Artwork Specialist position was "on hold."
Finally, Ms Lynch submitted that the Complainant had not raised aprima faciecase of discrimination and did not meet the test set down inSouthern Health Board v Mitchell [2001] ELR 201.In that case the Court set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established. The Court held that the complainant must: -
- "establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that aClaimant 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 facts are established to the satisfaction of the Court, and they are regarded by the Courtasbeing of sufficient significance to raise apresumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
Witness Testimony
The Complainant had requested a number of witnesses to attend the hearing, however, they failed to attend. Consequently, he stated that presenting his case without the witnesses was difficult.
Evidence of Mr Jim Redmond, Vice-President, Head of Global Supply
Mr Jim Redmond, Vice-President, Head of Global Supply, gave evidence on behalf of the Respondent. He said that at the material time he was the Director of Logistics and the Hiring Manager. He commenced employment with the Respondent on 2nd September 2013 and was the first employee to be employed for the Irish operation which was in a start-up mode. He said it was a very busy time, setting up and hiring staff and they needed to get staff in place urgently as the Company commenced its operations in Ireland on 1stJanuary 2014.
Mr Redmond said that he received the Complainant’s CV from the Agency on 17thOctober 2013. He said that he could not remember if the Candidate Profile Form and his Cover Letter were attached. He reviewed the CV and surmised that, while the Complainant had lots of artwork experience, it was at the end of the process and this did not match the Respondent’s needs.
Mr Redmond said that he had no recollection of whether or not he had a call from the Agency giving him details of the outcome of the Complainant’s Interview Preparation Meeting held on 21st October 2013. He said that as far as he could recollect the reason he was not progressed was due to the existence of two suitably qualified candidates who had significant relevant experience in the pharmaceutical industry. He said that both these candidates met all the criteria, they were interviewed in October 2013, it was a close call between the two, one of them was offered the job on 22ndNovember 2013 and he commenced in January 2014. That person remains in the position to this day.
Mr Redmond said that age was not a factor and the candidates were not requested to give their age. He said that the Agency never mentioned the ages of any of the candidates including the Complainant.
The Law
Section 6 of the Acts in relevant part states: -
- 6 (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in Subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—- (f) that they are of different ages, but subject to Subsection (3) (in this Act referred to as “the age ground”),
Section 8 of the Act in relevant part states
8 (1) In relation to—- (a) access to employment,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
Burden of Proof
Section 85(a) of the Act in relevant part states
- (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary.
The Respondent has cited theMitchellcase in which the Court clarified the manner in which the burden of proof is to be discharged, as cited above.
It follows that a complainant has to establish the primary facts upon which he or she relies upon, those facts must be of sufficient significance to raise an inference of discrimination. InCork City Council v McCarthyEDA 21/2008, this Court stated in this regard:
- “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 particular 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.”
Findings of the Court
In his submission to the Court the Complainant raised a number of criticisms of the procedures followed by the Agency and the Respondent in the recruitment process. However, he drew no correlation between those actions and his age. The Court notes that the Agency is a separate entity and was not impleaded in this case.
The Complainant’s net contention is that the only explanation for the Respondent’s decision was that he was considered too old for the post whereas the Respondent contended that, on examination of the Complainant’s CV, it was discovered that his experience was not relevant to the post in issue.
When the case came on for hearing the Court asked the Complainant to set out the facts that gave rise to an inference of discrimination on the age ground. The Complainant outlined the following two assertions: -
- i.When a senior employee in the Agency told him that the reason his scheduled interview with the Respondent was cancelled because the Respondent required“candidates to have previously worked within the pharmaceutical industry”,he saidthis was the third different reason cited by the Agency and it was after this call that he first considered that age discrimination might be a factor. He said that he believed that this particular excuse had been concocted in order to preclude him from consideration.
- ii.His suspicions grew when he received the email response on 23rd January 2014 from the Respondent’s Chief HR Officer in the US which failed to address his concerns around age discrimination.
It is not the Court’s function to determine who was the most meritorious candidate for the disputed position. Rather, its role is to establish whether or not the selection was tainted by unlawful discrimination on the age ground.
Having considered the oral and written submissions of both parties and the evidence given to the Court, the Court notes that the job specification for the Artwork Specialist role did not state that candidates must have worked in the pharmaceutical industry, however, it did state that candidates must have“experience with management of pharmaceutical product artwork across multiple regions”. While the Complainant had worked in the printing and packaging industry, which included managing artwork for firms in the pharmaceutical industry, he had never worked in the pharmaceutical industry itself. The Respondent told the Court that it had two strong candidates with significant relevant experience of working in pharmaceutical companies, specialising in packaging artworks and design and with regulatory experience in that sector. For that reason, the Respondent stated that the Complainant’s scheduled phone screen interview had been cancelled and it proceeded with haste to appoint one of the two strong candidates to the role and that person remains with the Respondent to this day. In such circumstances it is difficult to see how the Respondent’s decision not to proceed to interview the Complainant was influenced by his age.
Furthermore, the Court notes that the age spread of the staff of the Respondent shows no signs of age discrimination in its employment practices.
Taking all factors into account the Court concludes that the Complainant has not established facts from which an inference of discrimination may be drawn.
On that basis the Court affirms the Decision of the Adjudication Officer and rejects the appeal.
Determination
The appeal is not allowed. The Decision of the Adjudication Officer is affirmed. The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
05 March 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.