ADJ-00012162

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012162

Parties:

Complaint:

Date of Adjudication Hearing: 10/08/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant applied for a job as a Customer Support Representative with the Respondent, an Irish Subsidiary of an international Financial Technology Company providing online and mobile payment solutions. The Complainant stated that he applied for a job with the Respondent and submitted a CV to a Recruitment Consultant appointed by the Respondent to oversee the recruitment process. The Complainant maintained that he received an email on 27th September 2017 to arrange a telephone call in respect of the position and on 3rd October 2017 and following the telephone he was invited to an interview on Friday 6th October 2017.

The Complainant submitted that he attended the interview, and as part of the process he met with the Recruitment Consultant. The Complainant alleged when he met with the Recruitment Consultant he was asked questions with regard to his family circumstances and whether he was married, single or did he have children. The Complainant maintained when he answered the question he was left astounded by the response he received where he maintained the Recruitment Consultant stated “I am sick of people like you. You do not know what stress is. I have to be up early tomorrow morning driving my children to rugby practice at 11.30 and then bring another child to ballet dance practice and then go and pick them up”. The Complainant maintained that he did not respond to these comments at the time and moved on and asked what the next steps in the selection process were.

The Complainant submitted that he was advised by the Recruitment Consultant that he would be informed on the following Monday of the outcome of his interview, but he did not receive any feedback or contact from the Recruitment Consultant. He was subsequently advised after asking for an update that his application was not successful.

The Complainant submitted in his complaint form that the questions he was asked amounted to discrimination on the grounds of Family Status. The Complainant, who was unrepresented at the hearing, maintained that he had also been discriminated against due to his Civil Status and his Religion where he maintained that he was single, without children, and a practicing Roman Catholic. He advised that he was not aware at the time the questions he was asked were discriminatory, but subsequent to the interview he became aware of a WRC finding against a Government Minister who had asked a female Civil Servant similar questions to what he was asked, and where he believed such questions amount to discrimination.

Summary of Respondent’s Case:

The Respondent denied that it discriminated against the Complainant.

The Respondent stated that following an initial screening of the applicant’s CV the Complainant was subject to a telephone interview with a Recruitment Contractor appointed by the Respondent where the Complainant was subsequently invited to an interview.

The Respondent submitted that the Interview itself was conducted by two female team leaders who were the appointed Hiring Managers for the role. One of the interviewers had also received training in conducting interviews which included information on the need to avoid discriminatory questions and the obligations of interviewers under the Employment Equality Acts 1998- 2015. The Respondent submitted a copy of the training materials for this programme.

The Respondent advised that interview was based on core competencies that were deemed to be essential for the role. These competencies had been identified in the job description and they included a requirement that the successful candidates would be able to demonstrate excellent customer service; that the successful candidates would be required to demonstrate confidence in making instinctual decisions; that the successful candidates would have competency in analytical curiosity; and that the successful candidates would have competency in the ability to work to deadlines and in pressurised situations. It was also identified that experience in the FINTEC Sector and previous call centre experience were key elements to the role and where extra points were awarded for candidates who demonstrated this experience.

The Respondent maintained that the interview was conducted correctly and where it produced detailed interview notes of the competency-based framework that was used to record the responses given by the Complainant. The Respondent contended the interview notes recorded that the Complainant was scored objectively against the selection criteria. It maintained that out of a possible 100 marks, the Complainant received 26 marks as he demonstrated no or little evidence of competencies in understanding the importance of attention to detail and accuracy, with regard to confidence in making instinctual decisions, and with regard to analytical curiosity. The marks also noted that the Complainant gave some evidence in demonstrating excellence in customer service and some evidence in having the ability to work to a deadline and pressurised situations. A further 20 marks were available to candidates that demonstrated call centre and FINTEC experience. However, the Complainant did not receive the extra marks as he did not demonstrate any relevant experience in these environments. The Complainant’s recent experience as relayed during the interview related to bar work and night work in a hotel.

The Respondent therefore argued that the Complainant failed to demonstrate sufficient scores when compared against the successful candidates who had been awarded scores in excess of 80 marks. Consequently, the Respondent maintained that Complainant was not deemed to be a suitable candidate and was not hired. The Respondent provided copies of redacted interview records for some successful candidates and where the Respondent submitted this demonstrated how the Hiring Managers had fairly applied the criteria in a similar fashion to all candidates including the Complainant, and how the successful candidates recorded higher marks.

Explaining the selection process further the Respondent advised that following the interview the Hiring Managers would each have completed an individual evaluation of the Complainant. Whilst they noted some strengths with the Complainant in their assessment they did not identify areas where he was suitable, stating they had reservations in his lack of call centre experience, lack of working in a fast-paced environment, no FINTEC experience, no experience in high volume productivity relating to calls and emails, and where there would have been concerns about his ability to multitask.

The Respondent advised that the Recruitment Consultant met with the Complainant following his interview with the Hiring Managers. The purpose of that meeting was to discuss some parts of the Complainant’s CV, to discuss some elements of the Complainant’s work experience, and to thank him for his participation in the interview, and to escort him out of the office.

The Respondent advised that the Hiring Managers also met with the Recruitment Consultant after they had interviewed the Complainant. However, the Respondent maintained that the Recruitment Consultant had no part to play with regard to the decision as to whether any candidate was hired or not. That decision rested with the Hiring Managers

The Respondent advised that the Recruitment Consultant was not available to attend the Hearing. The Respondent provided a written statement from the Recruitment Consultant. In the statement, the Recruitment Consultant submitted that he was engaged in a contract recruitment capacity with the Respondent from July 2017 for a number of months up until Christmas 2017. He was specifically engaged to run onsite recruitment for the Respondent’s centre. He confirmed in his statement that he personally spoke with the Complainant on the phone to invite him for an interview after reviewing the applications they had received for the call centre operative’s role. The Complainant had made his application through the Respondent’s online applicant tracking system. The Recruitment Consultant advised that he met with the Complainant following the Complainant being interviewed by the Hiring Mangers’. He was not present for the bulk of the interview with the Complainant.

He advised when he met the Complainant after he was interviewed by the Hiring Managers he would have asked the Complainant about his contact centre experience and that the experience the Complainant had was not current or relevant to the role being advertised. He therefore thanked the Complainant for attending where the Complainant reciprocated his gratitude and then showed the Complainant out of the office. The Recruitment Consultant also advised that at no time did he receive a communication from the Complainant that he was unhappy with the process, maintaining there was nothing to report and the Recruitment Consultant denied that he would have made any of the comments alleged by the Complainant. The Recruitment Consultant advised that he then went back to get feedback from the Hiring Managers and they both agreed, as he did, that due to the fact that they had met other people who had direct call centre experience that the Complainant’s application would not be progressed to the next stage.

The Recruitment Consultant maintained that he never asked the Complainant about his personal family life or where he lived and stated that his meeting with the Complainant was a basic one-on-one ad hoc meeting.   The Recruitment Consultant in his statement also advised that given the interaction was so brief he was dismayed and concerned by the allegations made against him.

In response to the alleged lack of contact with the Complainant following the interview, the Respondent advised that it had received an email from the Complainant on 6th October 2017 and where in this email the Complainant thanked the Recruitment Consultant for the interviews and stated that he had really enjoyed the meeting. The Respondent submitted that it responded to the Complainant on 9th October 2016 advising the Complainant that his application had not been successful, and it received another email form the Complainant on 13th October 2017 again asking if the interview process had been finished and that the Complainant was looking forward to hearing from the Respondent with a start date. The Respondent provided copies of the email exchanges.

The Respondent maintained that the Complainant had no comparator with regard to his discrimination on the grounds of his family status, nor were the Hiring Managers aware of the Complainant’s religion or sexual orientation and therefore such matters could not have impacted on any decision they made. They maintained there was no prima facia case with regard to the allegations being made. The Respondent asserted that the Hiring Managers’ applied a fair and objective selection criterion based on the competencies and it was for that reason alone that the Complainant was not hired.

The Respondent also denied that the Recruitment Consultant was involved in any decision making with regard to the hiring of the Complainant as that decision rested with the Hiring Managers’ and where the Recruitment Consultant’s involvement was to assist in the sourcing of candidates, and in the managing and scheduling of the interviews.

The respondent submitted that the complaint should be considered as frivolous or vexatious in accordance with Section 42(1) of the Workplace Relations Act 2015. The Respondent argued that jurisprudence established by Barron J in Fahey v Ireland (unreported, Supreme Court 1st May 1997) where the judgement stated if [a claimant] has no reasonable chance of succeeding than the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious”. In relying on this defence, the Respondent argued that the Complainant has failed to provide an appropriate comparator to the alleged unfavourable treatment, or to specify the manner in which he received any such unfavourable treatment.

Summary of Complainant’s Case:

Having heard the evidence from the Respondent, the Complainant maintained that the comments were made to him when he met the Recruitment Consultant. The Complainant asserted that how else would he have known about the Recruitment Consultant’s own family circumstances unless they were shared with him. The Complainant was adamant that the comments were made to him and that the interview with the Recruitment Consultant had in fact been scheduled as part of the interview process. In this regard he maintained that the email he received inviting him to the interview included a 15-minute schedule to meet with the Recruitment Consultant.

The Complainant submitted that the emails provided by the Respondent at the hearing within were different to the emails he received when he was invited to the interview meeting. The Complainant maintained that the earlier email clearly stated there was a time scheduled to meet with the Recruitment Consultant as part of the selection process, but this had been removed in the email that was submitted to the Hearing. The Complainant also denied that he received an email on 9th October 2017 advising him that he was unsuccessful, and it was not until he emailed the Respondent on 12th October 2017, that he was advised that his application for the job was unsuccessful.

The Complainant advised that he was not in a position to provide copies of the emails he had received or sent because they were part of the Respondents’ online application system and as he had completed the selection process he could no longer gain access to the emails.

The Complainant acknowledged that the interview he experienced with the Hiring Managers was professional and where he had not been asked any discriminatory questions at that interview. He maintained that discriminatory questions were asked by the Recruitment Consultant after the Hiring Managers had left, and that because these questions were asked, which were unlawful, they were used to discriminate against him in the decision made by the Respondent not to select him for the position.

The Complainant was not in a position to provide any comparators or evidence that maintained he was discriminated on the grounds of Religion or the grounds of a sexual orientation, however, he did maintain that he had been discriminated on all the equality grounds with the exception of being a member of the travelling community.

The Complainant also maintained that his experience of working in a hotel at night time as a night porter and barman, and his prior experience of working in a manufacturing environment would have indicated that he has an ability to meet the competencies that were being asked, but that this experience which was detailed in his CV, had been disregarded by the Respondent. He maintained that working at night in a bar and nightclub required him to be multitasked, to make decisions, to handle customers, and to deal with cash and credit card transactions. He also maintained that the experience he gained when working at the reception of the hotel would have given him the required customer service skills that was being sought by the Respondent. However, he argued these skills were ignored by the Respondent. The Complainant further submitted in his CV that he had payroll experience, and IT programming skills at degree level and this experience would identify that he had the skillset required, but this was also ignored by the Respondent.

The Complainant therefore maintained that he had been discriminated where the basis for the act of discrimination was the comments made to him by the Recruitment Consultant after his interview with the Hiring Managers. The Complainant raised credibility with regard to the written statement provided by the Recruitment Consultant and questioned why the Recruitment Consultant did not attend the hearing and as such he was denied the right to cross examine that evidence.

The Complainant again advised that he was not aware at the time he had been discriminated against but it was some months later when he was advised that a female applicant for a public sector job had been asked questions about her family circumstances by a Minister of the Government, and she had won her case for the questions being asked. He therefore he believed that as he had experienced similar questions from the recruitment Consultant he had been discriminated.

The Complainant also submitted that he did not accept that the Recruitment Consultant had completed his contract with the Respondent in December 2017 because in January and February 2018 his own LinkedIn profile had been visited by the Recruitment Consultant, and where the Recruitment Consultant’s profile indicated he still was working with the Respondent. He therefore maintained this further discredited the evidence provided by the Recruitment Consultant.

Findings and Conclusions:

The Complainant has alleged that he has been discriminated in access to employment on eight of the nine equality grounds.

The Employment Equality Act 1998 (the Act) as amended, defines under S6 that discrimination shall be taken to occur when 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). With reference to the case within, the Complainant specifically stated he had been discriminated on the family status ground, the religion ground, and the civil status ground. However, he also maintained he had been discriminated on all the grounds except for the Traveller community ground.

In addition, Section 8(1)(a) of the Act, an employer shall not discriminate in relation to access to employment. Section 8(5) of the Act states: Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

• in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

• by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different…

With regard to whether a prima facia case exist what has been placed in front of the hearing is an allegation that discrimination took place during the one-to-one discussion between the Complainant and the Recruitment Consultant. It is acknowledged that generally speaking in employment quality issues a complainant may have little or no direct evidence of discrimination. EU Law has recognised this and has adopted a burden of proof in all Equality Directives which recognises such difficulty. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows: “when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a Court or other competent Authority, facts from which it may be presumed that there has been direct or indirect discrimination, it should be for the Respondent to prove that there has been no breach of the principle of equal treatment. This has been transposed into Irish Law by Section 85(a) of the Employment Equality Acts.

The Labour Court and Equality Tribunal’s approach to this issue and the test for applying Section 85(a) is well settled in a line of decisions starting with the Labour Court’s determination in the Mitchell –v- Southern Health Board.The Labour Court has also consistently stated that 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 set of facts which are proved in evidence.

For the case within it is a matter of fact that the Complainant met with the Recruitment Consultant on the day he was interviewed for the job; that it is a matter of fact that the Complainant was not successful in the application for the job; that the Complainant has alleged discriminatory remarks were made towards him about his family status; and where the Recruitment Consultant did not attend the hearing on the basis the Respondent could not compel him to attend. I find therefore find it is sufficient under the aforementioned circumstances to invite the Respondent to reply to these matters and the presumption regarding the range of inferences as alleged by the Complainant that could reasonably be drawn from these facts.

Having reviewed the evidence, I am satisfied that the Recruitment Consultant was involved in the initial processing of the Complainant’s application and called him for interview, and where the email correspondence to the Complainant at that time would have indicated that he met some of the key criteria for the role. I am also satisfied that the Complainant met with the Recruitment Consultant after he was interviewed by the Hiring Managers.

The Recruitment Consultant, an experienced HR practitioner, did not attend the hearing, however a written statement provided by the Recruitment Consultant was submitted. This evidence was challenged by the Complainant. In light of the non-attendance of the Recruitment Consultant at the hearing it was not possible to hear direct evidence in response to the conflict in the evidence between the Complainant and the Recruitment Consultants regarding what was alleged to have been said to the Complainant regarding his family circumstances. The Complainant is an unmarried man without children and as such he has protection against discrimination when compared to candidates who have a different family status. What therefore remains to be decided upon is whether the Respondent had applied a decision in relation to the access to employment which amounts to the Complainant being treated less favourably than another person on the family ground, or any of the other grounds which are specified under S6(2) of the Act, as alleged by the Complainant.

Having reviewed the evidence I am satisfied that the interview conducted by the Hiring Managers was the basis of the decision to select candidates. The evidence presented demonstrate that the Hiring Managers adhered to an objective selection process that did not treat the Complainant less favourably to other candidates. The selection criteria applied were objective and related to the nature of the work, and where the interview notes clearly demonstrate the Complainant fell short to a significant degree in the competencies and experience required when he was measured against the criteria. The evidence provided by the Respondent did not support the complaint that any discriminatory issues were considered or applied by the Hiring Managers. I am satisfied the evidence supports that the Hiring Managers conducted a very clear and transparent competency-based interview. The conduct of the interview is further supported in evidence provided by the Respondent which records the basis of the Hiring Managers’ decision making.

Furthermore, it is noted that the Complainant acknowledged that his interview with the hiring managers was professional, and he thanked the Recruitment Consultant in an email following the interview. I am therefore satisfied that the criteria applied in that part of the process was objective and non-discriminatory, and where the Respondent demonstrated other candidates had also been assessed against the same criteria.

Whilst the evidence with regard to the alleged conversation that took place between the Complainant and the Recruitment Manager is disputed between the parties, the Complainant was not in a position to provide evidence to support his contention that he received an e-mail from the Respondent which indicated the Recruitment Consultant was part of the decision-making process. Indeed, after the interview the Complainant emailed the Recruitment Consultant thanking him for the experience.

The Complainant also failed to provide credible evidence that supports he did not receive an email from the Respondent on the Monday following the interview. The emails provided by the Respondent supports that the Complainant was sent an email on the Monday advising him that he was not successful, and where the Respondent received an email from the Complainant on the following Wednesday asking for an update and a start date. On balance I find the Respondent’s evidence to be more credible with regard the post interview correspondence between the parties.

The Complainant has submitted that he experienced certain questions and comments from the Recruitment Consultant and that as a consequence of being asked these questions after he met with the Hiring Managers he was discriminated against. In making findings on this matter I note the Complainant has not identified any direct comparator. Merely he states that he was not found suitable because he was asked questions about his family circumstances, and the subsequent lack of response to his queries as to whether he was successful at the interview supports his assertion that he was discriminated against. Whilst the Complainant did meet and talk with the Recruitment Consultant, there is no evidence presented that the Recruitment Consultant was a decision maker in the final selection process. This decision was made by the Hiring Managers who clearly were responsible for the outcome not to select the Complainant.

Therefore, based on the evidence provided I do not find the Respondent was in breach of Section 8(5) of the act. I do not find that the Respondent put any arrangements or requirements in place that amount to discrimination against the Complainant under Section 6 of the Act. The evidence clearly supports that the Complainant’s skillset when assessed objectively by the managers fell short of the required competencies being assessed.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As I have not found that either discrimination has occurred under any of the equality grounds I do not find in favour of the Complainant. I therefore decide that the complaint fails.

Dated:   January 31st 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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