EDA1939

This matter comes before the Court as an appeal by Philip Matthew O’Malley (the Appellant) of a decision made by an Adjudication Officer in his complaint made under the Employment Equality, 1998 to 2015 (the Act) against Eircom Limited trading as Eir (the Respondent). The Adjudication Officer held that the Complainant’s claim was not well-founded.

The undisputed facts of the case

There is no factual dispute about the events giving rise to the complaint and appeal under the Act. The Appellant applied for employment as a Customer Care Agent in the Respondent’s call centre. He, along with eleven other candidates, attended an assessment centre on or about 6^thNovember 2018. From the group of twelve, nine persons were hired. Three candidates, including the Appellant were not hired. The assessment procedure involved marking candidates in three exercises. The respondent had set a threshold of 45 points out of a maximum 75 as the threshold score across the three exercises. The Appellant scored 42 points and was not selected for employment as a result.

At the outset of the hearing of the Court the Appellant clarified that his complaint was that he had been unlawfully discriminated against on the age ground. He confirmed that he no longer contended that he had been discriminated against on the gender ground.

Summary position of the Appellant

The Appellant submitted he had attended the assessment of the Respondent and that he believed that most of the other candidates were younger than him. He said that some time following his failure to secure employment through the assessment he had met a slightly younger female person in a supermarket and she had expressed shock that he had not been successful in his application for employment. He submitted that the Respondent used two recruitment agencies to recruit staff.

The Appellant submitted that in a group exercise as part of the assessment he had “jumped in” to make a contribution and he felt that this was the reason he had failed to score highly enough to be employed. He submitted that older people might be more confident than younger people and that this was probably why he had ‘jumped in’ during the exercise.

The Appellant submitted that it was well known that call centres employed younger people. He said that most employees of two named competitor call centre operators were in the twenty to forty age group. He submitted that he himself was in that age group.

The Appellant submitted that he did not know the ages of the successful candidates in the competition.

Summary position of the Respondent.

The Respondent submitted that it did not seek information as regards the age of candidates for employment in its call centre. The Respondent said that it did not know the age of the Appellant and neither did it know the age of the successful candidates in the impugned competition.

The Respondent submitted that it had not been able to secure an understanding of the basis for the Appellant’s assertion that it had discriminated against him on the age ground. It had conducted a merit based recruitment process and the Appellant had failed to score highly enough to be selected for employment.

The Respondent submitted that the Appellant had failed to discharge the burden of proof which rests upon him to establish facts from which an inference of discrimination could be drawn and as a consequence had not made out a prima facie case of discrimination.

Discussion and conclusions

The initial burden of proof in a claim of discrimination contrary to the Act rests, by operation of the Act at Section 85A(1), on the Appellant.

Section 85A(1) of the Employment Equality Act 1998 provides as follows in relation to the burden of proof resting upon a Complainant who alleges discriminatory treatment contrary to the Act:

• “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 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 these 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 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 or 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.”

• “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Determination

The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
DC______________________
16 December 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.