Complainant

Respondent

Parties

Ivar Raginski

Lodge Service

Representatives

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-00017465-001

15/02/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under section 77 of the Employer Equality Act 1998 and has submitted he was discriminated against by his prospective employer by reason of his race.

The Complainant is a Latvian national who has been resident in this jurisdiction for approximately 14 years.

The Complainant applied for a position as a store detective on the 20th September 2017 with the Respondent company. On the 6th October 2017, the Complainant was informed by the Office Administrator of the Respondent Company that that the Complainant will be interviewed for said position by the area manager at 3:30pm on October 10th 2017 at a particular location. The Complainant was advised to bring a completed copy of the application form and a copy of his PSA licence. In the course of the hearing, the Complainant played a conversation with the Operations manager, at the time, confirming he will attend for interview.

The Complainant gave evidence he attended on the appointed date as directed and signed in with the receptionist. The Complainant indicated he was waiting in the foyer/reception with three other individuals who he believes to be of Irish nationality.

The Complainant gave evidence that he believed the other individuals were called in for interview while he was remained in the foyer and after about forty minutes an individual, who he cannot name or identify as being from the Respondent Company, informed him that he will not be able to be interviewed today as his file had not been processed and he will have to wait for further information in relation to the interview.

The Complainant said he was shocked and frustrated by the manner in which he was treated. In that regard, the Complainant sent an email dated the 23rd October 2017 to the Office Administrator of the Respondent Company indicating he did attend for the interview on the date required and stated that the interview was not arranged in a professional manner and the basic principles of ethics were totally ignored by the interviewer who he identifies by his first name only.

Further, the Complainant stated in this email that he believed only four persons attended the interview and were called in one by one and the interviewer clearly saw all the participants and then informed the Complainant he will not be interviewed as his application form had not been processed and then formally apologized for the mistake of sending the invitation to interview by email.

The Complainant submitted that he believed his civil rights had be violated in not being interviewed and in that regard referenced Article 45 of the Constitution in that the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through there occupations find the means of making reasonable provision for their domestic needs.

The Respondent Company accepted that the Complainant had been invited to interview on the 6th October 2017 for the position of store detective.

However, the Respondent Company, stated that according to their records eight persons were scheduled for interview on the 10th October 2017 and the Complainant and one other person failed to attend. Ultimately, two people were hired for the relevant position. In the course of the hearing, the Respondent Company could not confirm the nationalities or race of the persons invited for interview.

The current operations manager contacted the area manager who was conducting the interviews on that day and reported that he does not recall seeing, meeting or have any conversation with the Complainant. It was further suggested that the Respondent Company would not have a file to process of a prospective employee and would rely on the application form and any documentation they would have provided on the day. The Respondent Company further suggested that if the Complainant did attend for interview at the designated location, he may have met with an interviewer from another company by mistake but this was denied by the Complainant.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that If the complainant does not discharge the initial probative burden required her case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

The Labour Court continued

“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.”

In establishing the facts to meet the 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.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“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.

Having considered all the evidence from the respective parties , and accepting the Complainants bona fides, I have to find that the claim of discrimination on the grounds alleged lack any direct or indeed indirect factual basis.

No prima facie case exists and accordingly the claim is dismissed.

I find that the Complaint (CA-00017465-001) made pursuant to Section 77 of the Employment Equality Act fails.

Discrimination - Race