ADJ-00010360

Complainant

Respondent

Anonymised Parties

A HR Manager

A food service company

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-00013381-001

29/08/2017

The respondent is a food and support services company, managing and delivering on-site services for clients across a range of organisations. In June 2017, they had a vacancy for a People Operations Manager with one of their major clients in Dublin.

On June 6th 2017, the complainant applied for the position and she attended for an interview on June 22nd. During informal conversation at the beginning of the interview, she said that she told the interviewers that she was a single parent. On July 7th, she was informed that she was not successful and would not progress to the next stage of the recruitment process.   Her complaint is that she has been discriminated against in contravention of section 6 of the Employment Equality Acts 1998 – 2015, and specifically, in contravention of sub-section 2(c) of section 6, the family status ground.

Interview on June 22nd 2017

Having applied for a position with the respondent, on Wednesday June 21st, the complainant received a call from a member of the recruitment team in the company, asking her if she could come for an interview the next day, June 22nd.  

Having arrived 15 minutes early, she said that the interview was delayed as she wasn’t collected from the reception area until two minutes after the scheduled starting time. The interview was hosted by the People Operations Manager, (on video from the UK) and the Account Director for the client. Before the commencement of the formal questions, she said that she mentioned to the two interviewers that, at short notice, she had made arrangements to have her son minded and that she was excited to be considered for the role. In her complaint form, she said:

“From there on, the interview was rushed, one of the interviewers kept looking at his watch while I was giving my answers and the whole thing finished as badly as it started.”

Before the interview ended, she said that the People Operations Manager said that she could contact him if she had any queries and that he would ask the recruiter to send her his contact details.

Seeking Feedback

The following day, June 23rd, the complainant sent an e mail to the recruiter, thanking her for the opportunity to interview for the role. She said that she followed up again with the recruiter, but she didn’t get a response and on July 7th at 10.22am, she sent a message via Twitter to the respondent’s head office in the UK, seeking feedback about her interview. At 12.28pm, the recruiter sent an e mail to the complainant, letting her know that she was unsuccessful.

Discrimination

In her complaint form, the complainant said:

“I feel I was treated unfairly given my status as a single parent thus being treated unequally in the way the recruitment process was handled as a result. All I expected was (and frankly every person who is looking to secure a job and put food on the table is) to be treated with dignity, respect and have a fair chance when being considered for a role.”

In her evidence at the hearing, the complainant said that she didn’t know why she was rejected.   She said that she wanted to contact the People Operations Manager to ask for feedback, but she never got his contact details. She said that the process was rushed and faulty from start to finish and she doesn’t know what the grounds were for not considering her for the job.

Interview on June 22nd 2017

The complainant was invited to attend a first round interview on June 15th 2017.   She didn’t turn up for this interview and on June 21st, the recruiter phoned her to ask her if she could come in the following day at 11.00am. She accepted this invitation. The interview was hosted by the People Operations Manager (on video link) and the Account Manager on the client’s site. E mail correspondence submitted in evidence between the recruiter and the interviewers show that each interview was scheduled for 45 minutes. Correspondence from an executive on the client site on June 7th to the interviewers states:

“We are still finalising candidates. Please allow 45 minutes each, this needs to be a thorough and rigorous interview, questions should be centered around;

Talent development, talent acquisition, employee engagement, employee relations, per the job description.”

A document prepared for the interview was also submitted in evidence and lists a series of about 50 questions under the following headings:

About You

Talent Development

Talent Acquisition

Employee Relations

Employee Engagement

Management Engagement

Client / Brand Engagement

Talen Management

Resource Management

The Future You

In his evidence at the hearing, one of the interviewers, the Client Account Manager said that he collected the complainant at reception on the day of her interview.   As was his normal practice, he said that he showed her one of the food-service areas in the building to give her an idea of the space that they were managing and the service they provide on the client’s site. He said that during the walk-up to the interview room, and, at the interview, which, he said, lasted for 45 minutes, there was no discussion between him and the complainant about her family status and she did not mention that she was a single parent.

The People Operations Manager took notes at the interview with the complainant, which ran to seven and a half pages and these notes were submitted in evidence. He said that the conversation about the complainant’s son “did not happen.”   He said that having worked in the role he was recruiting for, he had a clear understanding of the skills and experience required. He said that the complainant had a very strong background in recruitment, but little experience of operations management, and this is the reason she was not selected to go forward to the next stage of the process.

Selection of Candidates

On June 26th, the People Operations Manager sent a mail to the recruiter summarising his and the other interviewer’s opinions about the suitability of each of the six candidates interviewed on June 15th and June 22nd.   This is what he wrote about the complainant:

“Much of her experience is linked to recruitment.   Her current role is HR Consulting in an advisory capacity to an after-school company where she has spent a year in (sic). Has worked with multi-national companies like (name) and (name) in a recruitment contract. She successfully helped (name) build a new end to end recruitment process, digitalising it as well as update policies in line with current legislations. She sadly did not give very strong or convincing responses even though she had a fair knowledge of what a response would feel like. Having said that, she did suggest she worked to perfection, open-minded, uses humour to defuse negative situations and believes in clarity and honesty.”

The notes ends with confirmation that one particular candidate was at the top of the preferred list, with two others tied for second.

Although it appears that a decision was made on June 26th or shortly afterwards about the successful candidates, the complainant did not hear from the respondent again until July 7th, when she resorted to Twitter. In his evidence, the People Operations Manager said that it shouldn’t have taken two weeks to respond to the complainant and that he should have instructed the recruiter to communicate directly with the unsuccessful candidates on June 26th or shortly afterwards, when the preferred candidates were selected.

The Respondent’s Argument that Discrimination has not Occurred

The respondent’s position is that it acted fairly and objectively throughout the recruitment process and selected a candidate based on how they matched the competencies required for the role. On behalf of the respondent, Ms Burke said that the complainant’s family status did not form any consideration in the decision not to select the complainant, and in his evidence, the People Operations Manager said that the successful candidate is a single parent.

Ms Burke referred to the practice of the former Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, the primary facts from it can be inferred that a person was treated less favourably than another person has been treated, on the basis of the discriminatory ground cited. Ms Burke referred to the Labour Court’s analysis in the case of the Southern Health Board and Mitchell, DEE11, [2001] ELR 201, where the Court stated;

“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 those 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.”

The case of Margetts v Graham Anthony & Company Limited, EDA 038, was also referenced by Ms Burke as one where the evidential burden which must be discharged by the claimant before a case of discrimination based on the primary facts can be said to have been established. In this decision, the chairman of the Court stated:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The respondent submitted that the complainant has failed to discharge this burden of proof and consequently, the claim cannot succeed.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than someone with a different family status.

The Primary Facts

The complainant attended for an interview on June 22nd 2017, following which her performance was assessed against the performance of five other candidates.

Three of the six candidates were considered as suitable for progression to next stage of the hiring process, with one preferred candidate, and two in second place.

An interview agenda was prepared in advance and each candidate was asked the same questions, based on a list of competencies required for the job.

The complainant said that she told the interviewers that she is a single parent. The interviewers have no recollection of her mentioning this.

It was evident at the hearing that the complainant was upset and annoyed at not being selected for the role, or at least not being called back for a second interview.   Her grievance was exacerbated when she didn’t get a reply to her request for feedback.

In her evidence, she said that, as she didn’t get any response to her request for feedback, she doesn’t know why she was rejected. In a 600-word e mail to the respondent’s UK HR Department on July 7th at 13.54 (the day she received the e mail to let her know that she was not successful), the complainant set out her grievance about the interview. She did not say that she felt she had been discriminated against on the grounds that she was a single parent, but complained of not being given “an equal opportunity to prepare for the interview, as all candidates must have had.” This relates to the fact that on June 21st, she was invited to attend an interview the following day.   However, no mention is made about the fact that she was initially invited for an interview on June 15th, that she did not attend.

Less Favourable Treatment Compared to Another

Section 6(1) of the Employment Equality Acts 1998 – 2015 states:

“…discrimination shall be taken to occur where –

(a)   a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

To support a complaint of discrimination, a complainant must show that he or she has been treated less favourably than a person who has a different status. This complainant did not make any such comparison.  

Findings

Having considered this matter, and having listened carefully to the complainant, it is my view that she has not discharged the burden of proof required to establish that she has been discriminated against. I have reached this conclusion for the following reasons:

The e mail of June 26th from the People Operations Manager sets out the rationale for selecting the preferred candidate, and the reasons for not selecting the complainant. The reason the complainant was not selected was because her main strength was in the area of recruitment and she did not have as much experience in the other competencies (employee relations, employee engagement, client / stakeholder management) as the preferred candidates.    

I have reviewed the Agenda and Interview Questions document submitted in evidence and it is clear that the purpose of this document is to ensure that all the candidates were treated the same and asked the same questions. It seems to me that there was a lot to get through at the interview and the impression that the complainant had of the meeting being rushed could be related to the number of competencies that had to be covered.

I am inclined to believe the interviewers when they said that the complainant did not mention that she is a single parent or that she had to get her son minded to attend the interview.

At the hearing, it was evident that the complainant was angry that she didn’t get the job and she was also angry because she didn’t get a response to her request for feedback.   However, based on her evidence, I am not convinced that even she believes that the reason she was not successful is because she is a single parent. While it was evident that the complainant felt that she had been badly treated by the company, it was not clear that her grievance was related to how she was treated as a single parent, and she herself said, “I don’t know why I was rejected.”

As I have found that the complainant has failed to discharge the burden of proof which requires her to establish the primary facts that may be relied on to establish a complainant of discrimination, I find that her complaint fails.

Discrimination, family status, burden of proof