Complainant

Respondent

Parties

Francis Kere

CPL Solutions Limited, trading as Flexsource

Representatives

Michael McGrath, IBEC

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-00021594-001

05/09/2018

On September 4th 2018, the complainant went to the offices of the respondent’s employment agency in north Dublin to enquire about registering for work. He had been provided with temporary assignments previously with the company in 2015-2016 and in 2016-2017. As proof if his identification, the complainant presented an ID card, but this was not accepted, and he was asked for a passport.  

The complainant claims that he was discriminated against on the ground of his race because his ID card was not accepted.

In his evidence at the hearing of this complaint, the complainant said that, on September 4th 2018, he went online to register with the employment agency and he then went to their offices. He said he was met by a receptionist (“RE”), who asked him for identification. The complainant said that he produced his national ID card, but RE said that she couldn’t accept this as a form of identification and she asked him for a passport. The complainant said that RE referred to his ID card as “a piece of paper” and he claims that this was disrespectful.

The complainant said that, in accordance with EU legislation, a nationality identity card is an acceptable form of ID. When RE refused to accept this, he asked to speak to someone else. The operations manager (“OM”) then met the complainant but he also said that he wouldn’t accept the complainant’s ID card and he said that he would have to produce a passport or a card from the Garda National Immigration Bureau (GNIB). The complainant alleged that OM said that his ID card looked as if it was produced by people traffickers who could be holding his passport. After some discussion, the complainant said that OM told him that he had a business to run, but the complainant wanted him to call the Gardaí to deal with the allegation about people traffickers holding his passport.   The complainant telephoned the Gardaí and when they hadn’t arrived after about 15 minutes, he went to the Garda Station himself. At the hearing, the complainant produced a Pulse ID number of his complaint to the Gardaí. He said that the Garda on duty advised him to make a complaint to the WRC, which he did the following day.

In his evidence, the complainant said that the respondent is “deviating from the law by requiring a passport” and that anyone who does not have a passport is disadvantaged.   He said that he started a new job with a financial services company on October 15th 2018.

The respondent company is a licensed employment agency and it currently has people of over 100 nationalities employed or placed in jobs. The majority of the respondent’s workforce is not Irish. The issue of permission to work in Ireland and compliance with work permit requirements is critical to the legal operation of the company. At the beginning of 2018, the company was audited by the inspection unit of the WRC to ensure that all its employees were permitted to work in Ireland. An audit of the parent company was carried out in the summer of 2018. As a result of these audits, the company has introduced more stringent proofs to establish the identification of candidates and a passport or a GNIB card is now the only acceptable form of identification for job-seekers to register with the company.  

On September 4th 2018, when the complainant arrived at the company’s office, he had not registered online and he had not made an appointment. The ID card that he showed RE indicated that he was a Greek national and RE said that he would have to produce a passport. RE attended the hearing of this complaint and she said that the complainant became irate and she called OM to speak with him. OM reiterated the company’s policy and he explained that EU nationals are required to produce passports to confirm their identity. OM showed the complainant a number of completed application forms that had been filled in that day, to give examples of how the other candidates, from the European Economic Area (EEA) and outside the EEA must produce passports to prove their identification.

The complainant said that he worked for the company before and that he didn’t produce a passport. OM did not dispute this, but he explained that due to the recent audits and the requirements of the new General Data Protection Regulations, they had changed their procedures and all applicants were now required to produce a passport.   OM said that the purpose of the change in their policy is to ensure compliance with the law and to prevent the employment or placement of illegal immigrants. OM said that he did not suggest that the complainant was an illegal immigrant and he did not say that the complainant’s ID card was false.   OM gave the complainant his business card if he wished to contact him directly about his application.

The following day, September 5th 2018, OM received an e mail from the complainant in which he said that he intended to take the matter up with the WRC. OM replied that evening, reminding the complainant of the reason why a passport was required. He also told the complainant that if he provided the necessary identification, he would ensure that he would find a role for him. A copy of this e mail was provided in the respondent’s book of documents at the hearing.

It is the respondent’s case that requesting a passport from the complainant was not an act of discrimination, because the respondent provided evidence to the complainant that all other applicants were required to produce the same identification with their registration details. The complainant was asked to apply in a manner consistent with other applicants.   Furthermore, the respondent said that explaining the rationale for this requirement does not constitute a discriminatory act.

The complainant was provided with work previously by the respondent and on September 5th, he was invited to register so that he could be placed in a job again.   To register, he had to provide a passport to support his application, as all other applicants are required to do.

The complainant alleges that RE and OM were disrespectful to him because he had a Greek ID card.   They deny this and said that they asked the complainant to produce a passport and that they explained the reasons why a passport was required, along with a GNIB card and a visa, if applicable. OM said that he did not say that the complainant’s Greek ID was false, or that he was a victim of human trafficking or that he was an illegal immigrant.

The respondent’s position is that the complainant was not discriminated against on the grounds of his race. The company is entitled to ask for a passport as proof of identification. At the end of the hearing, OM repeated his commitment to finding the complainant a job, as long as he provides a passport to confirm his identification.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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 effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than someone of a different race.

The Primary Facts

The primary facts of this case are that, when he sought to register with the respondent’s employment agency, the complainant was told that his Greek ID card was not sufficient and he was asked to provide a passport.

Findings

I have considered the complainant’s case and the response of the company and I have reached the following conclusions:

The company has a legitimate reason for asking candidates who wish to register for work to produce a passport as a form of identification;

When he was asked for a passport, the complainant was not treated differently to a person of any other race compared to his Greek nationality;

The respondent offered the complainant the opportunity to register for work, and a commitment to placing him in a job, on condition that he produced a passport. In this regard, it seems to me that he was treated slightly more favourably than another person might have been treated;

I found no evidence that the complainant was treated with disrespect because he had a Greek national identity card.

Conclusion

Having considered the evidence submitted at the hearing, I have concluded that the complainant has failed to establish facts which lead me to assume that he was discriminated against because of his race. As a result, he has failed to meet the burden of proof required to establish his claim of discrimination on the race ground.

I have concluded that the complainant has not established the primary facts which show that he was discriminated against on the ground of his race. I have decided therefore, that this complaint is not upheld.

Discrimination, race