ADJ-00010321

Complainant

Respondent

Parties

Caroline Joyce

TTM Healthcare Limited

Complainant

Respondent

Anonymised Parties

A Job Applicant

A Recruitment Agency

Representatives

Brian Dolan, Peninsula

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-00013649-001

04/09/2017

The Complainant’s claim relates to her contention that she was discriminated against by a prospective employer in a job application on the grounds of family status and age. The Respondent is an employment agency who place staff with client organisations. The prospective employer in this case was one of the Respondents clients.

Background:

The Complainant applied, through the Respondent, for a position with one of their Clients in the health sector. The position was a 6/12-month, temporary contract and, if successful, the Complainant would work for the Respondent's Client but would be retained as an employee of the Respondent.

The Complainant stated that she was called for interview and was subsequently informed by one of the Respondent’s employees (Mr A) that their Client were happy to go ahead with her appointment subject to reference check. According to the Complainant, she provided two references relating to 3 positions she held pre-2000. The Complainant explained that she had to leave the workforce for a period due to family reasons. However, while she had returned to the workplace, she did not wish to provide a reference from her then current employer.

According to the Complainant's evidence, Mr A reverted to her and advised that their Client would not accept the pre-2000 references as they were "too old". The Complainant stated that she then offered to provide a reference from her current employer but was advised that it was too late at that stage.

Substantive case:

The Complainant claims that the Respondent had discriminated against her, by reason of her family status and age in relation to getting a job. The Complainant stated that references from previous employments should have been acceptable. She stated that she, as a single parent, had no choice but to leave the workplace to care for her children's needs. According to the Complainant, no mother should be denied the ability to rely on older references.

The Complainant further stated that those who have to withdraw from the workplace should not be penalised by having to provide current references and that it is wrong to write off 10 years of experience. In support of this point, the Complainant stated that one of the references she submitted related to almost 10 years’ service working in the area in which the position was being offered. She also stated that she provided a reference from her six months college work placement with the organisation who were now offering the position.

With regard to the alleged discrimination by reason of age, the Complainant stated in evidence that to say references are too old is effectively saying that the candidate is too old. The Complainant stated that this was particularly unreasonable given that her educational qualifications were recent and updated at the time she applied for the position. 

Background: 

The Respondent is a recruitment agency who supply candidates for interview for various positions to Client organisations. The Respondent stated that where candidates are successful at interview stage, they are then hired by the Client, as agency workers, while remaining employees of the Respondent.

According to the Respondent, the Complainant lodged a complaint citing a breach of the Employment Equality Acts. The Respondent stated that, in making this complaint, the Complainant was alleging that their Client's failure to accept her references and the consequent withdrawal of a job offer, constitutes discrimination under the "age" and "family status" grounds.

Response to Substantative Claim:

The Respondent stated that, in this regard it cannot answer the claim as, while they put forward candidates for interview by the Client, the methods of selection and rules in relation to the acceptance of references are not within the Respondent's remit and are entirely outside of their control.

According to the Respondent, following the lodging of the Complainant's claim, the Respondent sought further information in relation to the matter and advocated on behalf of the Complainant with the Client.

However, the Client advised that they did not offer the Complainant the position and, therefore, could not have withdrawn same. According to the Respondent, the Client advised that the Complainant age or family status had no relevance to her suitability for the position.

The Respondent stated that, as they had no further access to the internal workings of their Client, no further information could be offered in relation to the Complainant's claim.

Consequently, in the light of the foregoing, the Respondent denied that they had discriminated against the Complainant in any form and the complaint is fully denied.

In their Submission, the Respondent stated that that they could not answer the Complainant’s claim. The Respondent stated that the matters at the core of the Complainant’s claim related to the selection methods/rules as applied by their client. Consequently, the Respondent claims that such matters are not within their remit and are entirely outside of their control.

While noting the Respondent’s submissions in this regard, I am of the view that I should first assess the claim, to establish whether or not it is a prima facie a complaint of discrimination. The outcome of that assessment will establish whether or not the burden of proof passes to the Respondent. In that event, I will consider the Respondent’s submission that they are strangers to the claim.

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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

(1) 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, the burden of proof passes to the Respondent to prove the contrary.

(2) the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

Based on the above, when evaluating the evidence in this case, I must first consider whether the complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this 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".

In support of her complaint, the Complainant is inferring that the refusal by the Respondent's Client to accept references relating to her employment prior to her having to take time out of the workforce for family reasons, amounts to discrimination on the grounds of family status. I am satisfied, from the evidence presented by the Complainant, which was corroborated by the Respondent, that, following interview, she was offered the position in the Client organisation, subject to reference check.

The criteria for appointment and, in particular, requirements in relation to the role of references in that process, are clearly set by and are at the discretion of the entity offering the position, which in this case was not the Respondent but their Client. I am also satisfied that it is common practice in recruitment/selection that prospective employers place significant emphasis on candidates work history and that gaps in same will be regularly queried and, in many cases, be the deciding factor in whether a position, which is on offer, is formally confirmed.

Consequently, based on the above, it is clearly not within the scope of this adjudication to determine the appropriateness or otherwise of the Respondent’s Client's insistence on up-to-date/recent references as determining criteria in relation to the position on offer. What is before me for adjudication is whether or not the decision to apply such criteria in this case amounted to an act of discrimination on the grounds of "family status" and/or "age".

The Complainant's evidence is that her absence, for a significant period, from the workplace was directly related to the provision of care to her children in the context of her being a single parent and the specific aspects of the requirement for that care. It is, therefore, the Complainant's contention that the refusal to accept references relating to employment prior to her period of absence from the workforce, discriminates against her for having left the workforce to look after her children.

In considering the Complainant's complaint, it must be noted that, at the time she applied for this position, she had returned to the workplace and was employed on a temporary, fixed term contract. However, the Complainant chose not to identify her then current employers as potential referees in support of her application for the position on offer. In a context where the Complainant herself acknowledges that the position was being offered to her, subject to reference check, it is difficult to understand her motivation for not providing an up-to-date reference.

Having carefully considered the evidence presented, it appears most likely, on the balance of probability, that had the Complainant provided a reference from her current employers, the job offer would have been confirmed. In that context, I can only conclude that the Complainant's period of time out of the workforce would not have influenced the Respondent’s Client's decision with regard to offering the position.

It is also clear from the evidence presented that the Respondent’s Client’s decision not to confirm the job offer was based on the fact that they considered the references were not sufficiently current. No evidence was presented to suggest that the Respondent's Client or indeed the Respondent, sought, at any stage, to query the reason for the gap in the Complainant's work history. All the attempts made by the Complainant and the Respondent on her behalf to appeal the decision of the Client were confined to emphasising the various voluntary/temporary roles in which the Complainant had engaged during her time out of the workforce.

Therefore, there is no evidence to suggest that the Respondent’s Client had any awareness as to the reason for the Complainant's absence from the workforce. Consequently, I believe it is untenable to suggest that the decision in this case was based on the reason for the Complainant's absence from the workforce as opposed to the absence itself, which appears to be at the core of the Respondent’s Client’s decision in this regard.

In addition, I am satisfied that there are many reasons why an individual may withdraw from the workforce. While some of these reasons may be associated with the stated grounds under the Employment Equality Acts, there are many which are not. In this regard, the Complainant did not submit any evidence which would support the contention that individuals with other reasons for withdrawing from the workforce would have been treated more favourably than the Complainant, who had withdrawn for family reasons.

Consequently, taking all of the above into consideration, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of family status. 

The second element of the Complainant’s complaint related to her claim that she had been discriminated against by reason of her age. In this regard, the Complainant stated in evidence that, the Respondent’s Client’s statement that her references were “too old” was tantamount to saying that both she and her experiences are, in effect, “too old”. 

The Complainant pointed out that, in a context where her education and qualifications were recent and updated, the Respondent’s Client’s failure to recognise this was further evidence that she was considered “too old” for the position. 

It is clear from the Complainant’s own evidence that she had been interviewed for the position in question and that it was being offered to her, subject to reference check. This clearly suggests that the prospective employer was, following interview, willing to offer the position to the Complainant. Therefore, it cannot be construed that the Complainant’s age was a factor in whether or not the prospective employer was willing to offer her a job. 

It clearly follows that the deciding factor in the eventual withdrawal of the offer was based solely on the gap in the Complainant’s CV, as opposed to her actual age. While the Complainant’s dissatisfaction with the prospective employer’s decision with regard to her CV might be understandable, construing the decision as an act of discrimination on the age ground is not tenable. 

Consequently, taking all of the above into consideration, I find that the Complainant has failed to establish a prima facie case that she was discriminated against by reason of her age.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claims that she was discriminated against by reason of her family status and age are not well founded. In relation to both grounds, the Complainant failed to establish a prima facie case of discrimination.

Consequently, the Complainant’s claims in this regard are rejected.

Employment Equality Act

Family Status

Age are