Complainant

Respondent

Anonymised Parties

A researcher

A state body

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-00021870-001

16/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021870-002

16/09/2018

The complainant referred her complaints to the Workplace Relations Commission on 16 September 2018.     On 9 November 2018, the Director General delegated the complaints to me for hearing, investigation and decision.   I held a joint hearing with the parties on 29 November 2018.

The complainant, a Polish national, had been working for the respondent from March 2006 until her resignation on 14 September 2018. Her last role prior to her resignation was as a Data Analyst and Labour Market researcher, which she identifies as a specialist grade 8 within the organisational structure. The complainant holds a Master’s degree (Magister) in economics from a Polish university. The complainant clarified in oral evidence that this degree encompassed an undergraduate degree in economics. Since joining the respondent organisation, she has also continuously furthered her education by completing courses relevant to her work.

CA-00021870-001 – Employment Equality Acts:

In January 2018, the complainant applied for an externally advertised role as economist in her unit, which would have been a promotion for her. The advertisement specified that the ideal candidate would have an honours degree in economics and preferably a Master’s degree in labour economics. The complainant considered that this promotional opportunity encompassed a lot of the work she was already carrying out for the respondent, and she applied.

According to the complainant, three candidates in total applied for the position, two from within the respondent organisation and one external candidate. The other internal candidate was Irish. The external candidate was a woman from India, who was much younger than the complainant. The complainant also emphasised in her oral evidence that the external candidate lacked her many years of professional experience, that she was a recent graduate of an Irish university and that she had only worked as an intern previously. The complainant also stressed that between her professional experience in Poland and her career with the respondent, she had 19 years of work experience in her field.   However, only the external candidate received an interview, whereas the complainant submitted that it was the respondent’s usual policy to interview all internal candidates. The person who made the interviewing decision was also the complainant’s manager on a day-to-day basis. In the course of her decision-making as to who to invite for interview, the complainant’s manager accessed the complainant’s HR file to ascertain some aspects of her degree, which aggrieved the complainant greatly, as did the fact that the complainant did not gain sufficient points on the matrix for academic qualifications which the respondent normally used. The complainant also alleged that the translation of her degree on her HR file was faulty.

The complainant took great exception to this and raised an internal grievance for what she considered to be discrimination on the ground of race.   The complainant’s grievance was ultimately upheld, but racial discrimination was denied. The finding was that the complainant should have received an interview. The complainant was offered an interview on the second competition for the same post – the position had not been filled following the first advertisement and disputed interview, but given that the post criteria had changed and the respondent had by now specified that it preferred a PhD qualified economist in the role, the complainant contends that this offer of an interview set her up to fail, essentially. Therefore, she did not apply for the position when it was advertised for the second time.   The complainant stated in evidence that she found the entire process extremely intransparent and unfair, and that she had to make an appeal to the Information Commissioner to obtain her own interview scores.     Throughout the hearing it was evident that this was of major importance for the complainant and that she had filed the within complaints as much to obtain information from the respondent as for seeking legal relief.   It is the complainant’s overall case that this interview process constitutes discrimination on the grounds of age and race, as the complainant, in her own statement, cannot see any other reason why she should not have been interviewed for the role when it was first advertised. She notes that her successful comparator was both of a different age and a different race. Especially regarding the successful comparator’s race, the complainant also stated, both in her internal grievance, in her written submission and in oral evidence at the hearing, that the respondent had a policy to hire European Economic Area nationals in preference to third country nationals.   Given that the successful comparator was an Indian national, the complainant alleges that the respondent violated its own policies.

The complainant also complained that her manager excluded her from training. In her oral evidence, she referred to a technical training session which would have been relevant to her work but to which she was not invited.

The complainant did not adduce any evidence for harassment on the grounds cited in her complaint.

About her complaint of victimisation, the complainant cited being referred to the respondent’s occupational health provider when she was out sick for work-related stress, and also stressful interviewing situations during the rather lengthy grievance process. The complainant’s grievance was only part-upheld on the final appeal stage.  

CA-00021870-002 – Unfair Dismissals Acts:

The complainant’s main argument in this complaint application is that the respondent’s stonewalling in terms of providing her with information, after she was not called for interview, and in connection with her grievance process, constituted conduct which was so unreasonable that she had no alternative to but to resign her employment.   She also took issue with the fact that the respondent’s regular HR consultancy investigated her grievance, which in her view made them biased in favour of the respondent. The complainant stated in evidence that until the events surrounding the job advert and the denied interview opportunity unfolded, she had been very happy to work for the respondent and had greatly enjoyed working with her colleagues. In terms of her mitigation of loss, the complainant stated that she had returned to Poland and had obtained an interesting position rather easily.   However, relative to the cost of living in Poland, it paid less than what she had earned in the employment of the respondent. The complainant specified that she estimated the cost of living in Poland to be about half of what it is in Ireland, whereas her new role, which she will start in January 2019, pays about 1/3 of the salary she earned with the respondent. The complainant stated however, that she needed to recover in Poland, and close to her family, from the ordeal which the last few months in the respondent’s employment had been for her and that if successful in her complaint, she did not look for compensation to match her salary.

The respondent is a long-established state agency within the larger remit of supporting the state economic life, with an emphasis on training and labour economics. The complainant worked for it for more than 12 years, working her way up from a clerical position to increasingly responsible roles. The respondent appreciated the complainant as a competent and hard-working staff member and at the hearing expressed regret at her decision to resign from her employment.

CA-00021870-001 – Employment Equality Acts:

The respondent, as per its own grievance findings, accepts that the complainant should have been offered an interview for the position in question. However, it denies any discrimination on either race or age being at play in the process. It stated that in general terms, it does not distinguish between job candidates with Irish nationality, EEA nationals and third country nationals who have a valid work permit for Ireland, and that it does not ask any job candidates for their age. The respondent’s witness Mr C. clarified that the respondent, in agreement with the staff unions, had ceased to interview all internal applicants for a position automatically. This had been the policy of its predecessor organisation, but it had been discontinued.   The respondent also emphasised that neither at the first, nor at the second attempt was the economist position filled and that it remained unfilled at the time of hearing.  The respondent confirmed that the complainant applied for the position when it was first advertised, as the only internal candidate, but did not apply when it was subsequently advertised, despite being assured of an interview.

Ms G., who was both the hiring manager and the complainant’s day-to-day supervisor, gave extensive evidence on what informed her approach in the first competition.   Ms. G. is an Irish national of Turkish origin, who has worked as both an academic economist and in public service roles in several European countries and in the US. She holds a PhD in economics from a leading Irish university.

Ms G. explained that her goal was to strengthen her team with an economist who had an emphasis on pure economics in their academic qualifications, to strengthen the team’s position in its collaboration with another state agency focused on economic research.

To this end, her preference was for a candidate with a specialisation in pure economics, and she focussed her selection of potential candidates for interview on this fact.   The Irish candidate, who held an MBS degree in Economics and Finance from Waterford IT, was disregarded first.   The complainant, who held a master’s in economics with a specialisation in IT and Econometrics, was likewise unsuccessful in being shortlisted for interview. Specifically, with regard to applying the normal respondent matrix for academic qualifications, Ms G. stated that this was of no use in a situation where she was looking for a very specific qualification, since all three candidates would have obtained the same score.

So instead, Ms G. set out to research the qualifications of the candidates. She knew the qualification of the candidate who was interviewed, because she had taught at the same university and knew the degree programme. She found information about the degree from Waterford IT on the institute’s website.   She would only find information in Polish on the website of the complainant’s university. Therefore, she contacted HR, who had a translation of the complainant’s degree on file. From this translation, Ms G. concluded that the complainant’s degree was a mixed degree and insufficiently focussed on pure economics. Ms G. stated that to her knowledge, the translation of the degree had been provided by the complainant at the beginning of her employment with the respondent. Therefore, Ms G decided to not interview the complainant, either.

In the end, the interviewed candidate was not hired. When the competition was re-run, this time with a demand for a PhD qualification, nobody was hired, either. The respondent confirmed that the position remains unfilled.

Regarding the training from which the complainant felt excluded, Ms G. explained that this was an explanatory session on a database feature which was organised on an ad hoc basis by one of her colleagues.   Ms G. denied any discriminatory or victimisatory intent.

CA-00021870-002 – Unfair Dismissals Acts:

The respondent’s HR Director emphasised in her evidence that she had many meetings with the complainant in an attempt to resolve the complainant’s grievance. She stated that the complainant had many questions which could not be answered as they were outside the frame of reference for the complainant’s grievance investigation.   Ms M. strenuously denied that she had wanted to victimise the complainant with her referral to the occupational health expert.   She stated that she had been aware for some time that the grievance investigation process caused the complainant stress and anxiety and that when she was made aware that the complainant was certified sick for work-related stress, she became alarmed. She also emphasised that it was the respondent’s policy pursuant to its obligations under the Safety, Health and Welfare at Work Act 2005, to follow up sick absences for work-related stress promptly.   In response to a direct question, she stated that the respondent had no minimum waiting period for a referral to its occupational health provider in such situations.

The respondent also emphasised that it had made repeated offers of mediation to the complainant, including with the outcome of her final grievance appeal which was in her favour, but that the complainant had referred the within complaints to the Commission almost immediately afterwards.

CA-00021870-001 – Employment Equality Acts:

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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 complainant bases the nub of her complaints of discrimination on the grounds of race and age on the fact that someone of a different race and a different age was granted a job interview in circumstances where she felt entitled, due to her qualifications and experience, also to be interviewed.   She submitted that this fulfils the test set out in Section 6(1) of the Employment Equality Acts. She also stated that she could not think of any other reason why she was not interviewed.

However, the test set out in S. 6(1), which states that

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated”

is in itself a legal abstraction of what the state’s equality legislation has been set up to achieve, which is to prevent disadvantage to members of a number of nine specifically identified social out-groups based on protected characteristics. The necessity for anti-discrimination legislation itself rests on the insight, first advanced by social scientists, that where people belong to a social group which is not “our” group, they are easily marginalised, exploited, and disadvantaged because of that perception.     Section 6(1), then, is a way of defining such situations in a legally sound way. It is quite abstract and for good reason: The direction in which oppression flows can be highly-context dependent, for which DEC-2009-099, Glennon v. Carboni is but one example.

In the within case, discrimination on the ground of race is not easily identifiable. The Irish candidate was as unsuccessful as the complainant. Other than that, there is one middle-aged woman of Turkish origin – the complainant’s manager – one middle-aged Polish woman – the complainant – and one young Indian woman, who received an interview. I asked the complainant outright at the hearing to identify for me where she saw the racism happening in this scenario. The complainant could only answer me in the abstract as outlined above.

I find this insufficient.   I am not satisfied that in the within case, the different nationalities of the people involved amount to more than happenstance. I cannot see who would be the “out-group” member between the three women who would be marginalised because of her race or nationality, and I see even less how this would be the complainant as a white European. I also wholly accept the respondent’s evidence that it does not discriminate on the basis of someone’s non-EEA nationality, as long as they have a valid work permit for Ireland. To do so would indeed be unlawful under the Employment Equality Acts, and the argument which the complainant advanced in this context cannot stand. I therefore find the facts before me to be of insufficient significance to support a prima facie case of discrimination on the ground of race in favour of the complainant.  

To turn to the complainant’s complaint of discrimination on the ground of age, I accept the complainant’s statement that her successful comparator was considerably younger than her. The complainant knew her comparator because she had been an intern with the respondent organisation previously. I accept the respondent’s evidence that it does not ask for candidate’s ages, but where a significant age difference exists between two candidates, this tends to be obvious even where someone’s exact age is not known. I am therefore willing to accept that the complainant has established a prima facie case of discrimination on the ground of age, which it is for the respondent to rebut.

That said, I am satisfied that the respondent has rebutted it. Employers are entitled to advertise positions with relatively wide criteria, since they can never be quite sure who the potential applicants will be. They are then equally entitled narrow down the applicant pool by what meets their needs best.   I am therefore satisfied that Ms G. selected the relevant candidate for interview, not because she was young, but because she had the pure economics qualification that Ms G. was seeking as a priority to complement the skills of her team.   I also accept Ms G.’s explanation that this was her emphasis because of her team’s collaboration with the other economic research body.

There was considerable dispute between the parties at the hearing as to whether the complainant’s degree was a mixed degree or a Master’s in pure economics. The complainant’s arguments that what the respondent had on file was a poor translation were unconvincing, especially since the complainant had provided the translation herself. I am satisfied that the complainant's degree had major components outside of pure economics and that she was therefore not as ideally suited for the position as the candidate who was interviewed.

I also place some importance on the fact that the candidate who was interviewed was ultimately unsuccessful, too. If this was really a matter of discriminating on the ground of age, nothing would have stopped Ms G. from actually hiring her, but clearly, Ms G. felt she was not a good fit for the role after encountering her in interview.  

The complainant has also alleged that the second job advertisement, this time for a candidate with a PhD in economics, was put this way to exclude her from success, never mind she was invited to interview for it.   It was not a fortunate move for the respondent to have done this, as the demand for a doctoral degree did indeed exclude the complainant.   This could only serve to aggravate the situation between the parties rather than resolve it, which is precisely what happened.   A more joined-up effort to assure the complainant of her continued career opportunities with the respondent would have been desirable. That said, Ms G. was also within her rights as a hiring manager to redefine the qualification for the staff member she was seeking to include a PhD, and I cannot see how this would be discriminatory against the complainant on the ground of race or age, or even specifically directed against her in a personal sense.  

Likewise, the events which led to the complainant being left out from the brief training session on a particular database functionality are not really significant enough to support a case of victimisation within the meaning of S. 74(2) of the Acts.   It is not clear that this was targeted adverse treatment in response to the complainant’s grievance, in which she had complainant of having been discriminated against. It is much more likely that this was a matter of sloppy organising, but in the tense atmosphere between the parties, the complainant regarded it as a targeted snub.

I cannot accept that the complainant’s referral to the respondent’s occupational health expert was in any way victimisatory, given that the complainant was out sick for work-related stress. For the respondent to do so was wholly in line with its duty of care towards the complainant and its obligations under the Safety, Health and Welfare at Work Act, 2005. The interpretations which the complainant put on this event are simply erroneous.

For all of these reasons, the complainant’s complaint of victimisation cannot succeed, either.   I already noted that she had not adduced any evidence for her complaint of harassment within the meaning of the Acts.

CA-00021870-002 – Unfair Dismissals Acts:

The complainant’s complaint under the Unfair Dismissals Acts is for constructive unfair dismissal pursuant to Section 1(c) of the Acts. The relevant legal test on constructive unfair dismissal is that either an employer breaches the contract of employment, or that it conducts itself so unreasonably that the employee has no option but to resign from his employment.     The complainant argues the second scenario. For a constructive unfair dismissal complaint to succeed under those circumstances, the responding employer must be on notice of the alleged unreasonable behaviour, so that it has an opportunity to address it. And indeed, the complainant did utilise the respondent’s grievance procedure, and her grievance was part-upheld, if only on appeal.   Significantly, the complainant’s complaint of racial discrimination was not upheld, but given that I, too, was unable to find racial discrimination as per my remarks above, I do not rate this result as unreasonable. The complainant was repeatedly invited by the respondent to participate in a mediation process to facilitate further clarifications and a fresh start between the parties. The complainant declined this, as is her right, and I would not wish to find that she conducted herself unreasonably in doing so. Neither do I think that the complainant’s insistence on attaching certain interpretations to certain events, like her belief that she was discriminated against, constitute unreasonable conduct on her part in the context of determining a complaint of constructive unfair dismissal.

That said, even though many things either went wrong or were poorly handled by the respondent in the course of the events which gave rise to the within complaints, it also made lengthy and sustained efforts to address the complainant’s grievances, and I am satisfied that it did so in good faith. I cannot accept that the respondent conducted itself so unreasonably that leaving her employment was the complainant’s only viable option on receipt of her grievance outcome. Accordingly, the complainant’s complaint of constructive unfair dismissal must also fail.  

CA-00021870-001 – Employment Equality Acts:

I find that the respondent did not discriminate against the complainant, on the ground of either race or age, and that it did not victimise the complainant contrary to S. 74(2) of the Employment Equality Acts 1998-2015.

CA-00021870-002 – Unfair Dismissals Acts:

I find that the complainant’s termination of her employment with the respondent is not a constructive unfair dismissal within the meaning of S. 1(c) of the Unfair Dismissals Acts, 1977-2015.