Complainant

Respondent

Parties

Eileen Owens

Guinness Storehouse Ltd.

Representatives

Arthur Cox Solicitors

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-00019387-001

24/05/2018

Both parties agree to amend the name of the Respondent to Guinness Storehouse Ltd.

The complainant applied for a role with the respondent but, following an interview on 21st February 2018, was informed by the respondent that she had not been unsuccessful. The complainant lodged a Complaint Form with the WRC on 24th May 2018 alleging that she had been discriminated against by reason of her age in not getting a job.

The complainant submit that she applied for the position of “finance Assistant” with the respondent and completed a first round interview on 19th February 2018.   She was subsequently called for a second-round interview on 22nd February 2018.

The complainant submits that at this second interview she was asked a question by the Finance Manager, which she believes was ageist and inappropriate. The complainant submits that she was asked, “We are a very young team here at [location], how would you feel about that?” The complainant submits that this question was prefaced by the following comment form the Finance Manager, “I’m going to ask a question, I probably shouldn’t be asking this but I’m going to ask it anyway.”

The complainant was taken aback by the question but answered it as best she could. Her general reply to the question was along the lines of, “I’m young at heart, I don’t look my age, I have a 24-year-old daughter, I am experienced at work and work well with all colleagues, regardless of age,”

The complainant found it difficult to concentrate for the remainder of the interview as she was in disbelief of the question she had been asked. The complainant does not understand why the Hr Business Partner who was on the interview panel had not intervened.

The complainant felt very aggrieved by how the interview was conducted and submits it has left her feeling very apprehensive when attending other interviews.

The complainant did receive feedback about her application and was informed by the respondent that the interview panel felt she was “over qualified” for the position.

The complainant wants the parties involved in the interview to be aware of how the interview affected her and hopefully prevent it happening again.

In oral evidence at the hearing the complainant stated that she was “100% sure” that the words used at the interview were as above. Even though she was shocked by the question she proceeded to answer it as best she could. The complainant stated that she had no intention of taking up the Financial Analyst, which was a possibility subsequent to her application for the Financial assistant role, after her experience in her interview.

In cross examination the complainant stated that the question referred to was asked and she wrote the words down after the interview.

The respondent provided a detailed written submission.

The respondent denies the complainant’s claim that she was discriminated against.

As way of background the respondent submits that the Finance Assistant role involves a significant amount of repetition of low-level mundane tasks such as daily bank and cash reconciliation, reviewing cash discrepancies in the tills and discrepancies as a result of credit card sales, filling cash machines, ensuring they are working correctly, arranging for the repair, ordering change for the cash machines when they run low, and debtor’s management. The role does not require any accounting journals are any medium to high level accounting skills or experience. There was a high attrition rate in the position.

Of the initial 136 applicants for the role nine were called for first round interviews. Three candidates were shortlisted for second and final interview. The ages of these candidates were not known at the time of the recruitment process.

The respondent has a detailed interview template informed by its corporate values and competencies.   This does not inform the specific questions for every interview, but which establishes a basis which is used by the interviewers. The respondent believes the criteria used to assess candidates could not be said to be discriminatory either directly or indirectly on the age ground.   A scoring matrix is used to score and rank the candidates.

The interview panel for the second interview consisted of the Commercial Financial Manager, Ms A and the HR Business Partner, Ms B.   Mindful of the high attrition rate for the position it was put to the complainant, inter alia, that she was likely to be over experienced for the role and it could struggle to hold her interest.   The complainant replied that she understood the role and that she would try to introduce more efficient systems to carry out the various tasks.

Following the interviews, the candidates were ranked using the assessment form. The complainant was deemed not suitable for the role. The narrative on the assessment form read;

“Overly qualified candidate; worried that the role is to administrative and monotonous to keep her challenged. Limited debtor’s requirement in role which is her key strength. Keep in mind for future financial roles.”.

The candidate listed third on the assessment form scored 26 out of a possible 35 points. The key advantage that Candidate 3 had over the complainant was her directly relevant experience dealing with cash in a retail/service environment which was identified as a key responsibility of the Financial Assistant role. The complainant on the other hand had a very limited cash handling experience and limited retail/service experience.

Following the interview, the respondent sent the complainant some feedback, explaining that she was deemed to be over qualified for the role but that the respondent would be positive towards her for any future more senior financial roles.     When contacted with her feedback the respondent maintains that the complainant agreed with the view that she was overly qualified for the role.

The respondent denies that the allegation in question was put to the complainant during her interview at all during the recruitment process. It is further denied that any discriminatory ground informed the respondent’s thinking and decision-making.

While it is denied that Ms A asked the alleged question of the complainant, the respondent accepts that during the second round interview a question using the word “young” was asked by one of the Ms A. The word was used in the context of explaining the culture of the respondent’s business. Although the tasks associated with the role of Financial Assistant are repetitive and mundane, the culture and environment by reason of the business volumes and the nature of the business is fast-paced and dynamic. This point was put to each of the three candidates at the second-round interviews to understand how they would work in such an environment. The respondent denies that any question was put to the complainant with any intention or purpose of being discriminatory on the grounds of age. No question was raised in the context of or indirectly in consideration, of the age profile of the existing workforce or of the candidates.

The respondent submits that the complainant’s age was not considered at any stage of the recruitment process, in fact, the respondent submits hat they were keen that the complainant apply for another more senior financial role in the business which was advertised subsequently.

The respondent submits that the there was no bias towards prospective candidates on grounds of age and applicants were required to pass each stage of the selection process on their own merits. In so far as the word “young” was used it is not accepted by the respondent that this amounts to discrimination. It is further submitted that if the use of the word young was looked upon as amounting to discrimination, that any influence it had on the process was “trivial” as referenced in the Labour Court decision, O’Higgins v UCD.

In oral evidence at the hearing, Ms C referred to the high attrition rate in the position and stated that she believed the role would not be challenging enough for the complainant.

Regarding the alleged question Ms A stated that she did not agree with the complainant’s recollection of the words used but agreed she had a question using the word young, but this was in reference to the culture of the workplace. She denied that she had said, “I shouldn’t be asking this…”.

In oral evidence Ms B stated that she recalled Ms A asking a question about culture and using the word young, but it was in the context of the open plan nature of the office and how the complainant would feel working in such an environment. When it was put to Ms B that the complainant was disappointed that she had not intervened when the alleged question was asked Ms b stated replied by saying that she would have intervened if the question had been asked as alleged by the complainant but that the fact that she did not intervene indicates that the question was about the culture.

In response to questions from me Ms B stated that she had undergone Unconscious Bias and interview skills training. Ms A stated she had not done diversity training but had undergone interview skills training.

When asked what exactly she meant by young, Ms A stated that she should have just said, fast paced.   She did not want it to sound discriminatory and it had no impact on the selection.

Section 6 of the Acts defines discrimination as follows: "6.- (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, 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 subsection

(2) (in this Act referred to as the "discriminatory grounds") which – (i) exists…," and "(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").

The Complainant has submitted that she was discriminated against because of her comparative age when she entered the competition for the Financial Assistant’s role. The Respondent contends that the recruitment process was fair and non-discriminatory.

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the 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 continued:

 “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 was no infringement of the principle of equal treatment”.

My first task therefore is to assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination has been established.

To determine whether the Complainant has established a prima facie case a three-tier test is employed:

First, the Complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

With regard to the first test; it is apparent that the Complainant is somewhat along the employment age spectrum. So this test is satisfied.

Test two revolves around the interview process, the questions asked at the interview and the subsequent decision of the interview panel in not selecting the Complainant for the post.

The interview panel had an interview template to inform the questions to be asked of the candidates and follow-on questions stemmed from the answers given. From the evidence adduced it is clear to me that it was one of the interview panel who first brought the matter of age into the deliberations. Although there is some discrepancy between the parties of exactly how the matter was couched there is no doubt that the candidate was asked about how she would settle into a “young” workplace. I can think of no reason why this question would be asked except to find out the Complainant’s view of her ability to carry out the role of Financial Assistant given her relative age.       Whether conscious or unconscious this question indicates that age was a factor in the selection process, with a bias towards younger candidates. I therefore find that the second test has been passed.

Test three; that she was not treated less favourably than a younger candidate comparator. The successful candidate came from a younger age group than the Complainant, so therefore the third test is passed.

As all three tests have been passed, I find a prima facie case of discrimination has been established.

As the Complainant has demonstrated that a prima facie case exists that discrimination took place due to her age, my second task is to decide whether has the Respondent has adduced sufficient evidence to rebut the claim of discrimination?

The Respondent has put forward the view that the question asked at the interview about the “young and vibrant” work environment did not indicate an intention to discriminate against the Complainant on those grounds and that the Complainant is reading too much into a few words. However, the Respondent cannot interpret the words for the complainant; her interpretation (that the job would be suitable for as young person) is reasonable and I tend to agree with Complainant’s interpretation of the question.

I conclude the Complainant has established a prima facie case of discrimination on the grounds of Age and this has not been rebutted by the Respondent.

I note that at the hearing the Complainant stated that she had processed this claim as a matter of principal and to prevent things like this happening in the future.

The complaint is founded, and I order the Respondent to pay the Complainant €2,000 in compensation for the effects of the discrimination.

Age, bias, interview question