ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014253
Parties:
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Complaint(s):
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-00018581-001 | 18/04/2018 |
Date of Adjudication Hearing: 04/06/2019
Workplace Relations Commission Adjudication Officer: David Mullis
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, and 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 says that he was discriminated against, contrary to Section 79 0f the Equality Acts, 1998 – 2015. He says that this occurred because of a form he was asked to complete when applying for a position with the Respondent, which questions, he says, were contrary to the discrimination terms of the Act and denied him the opportunity to successfully compete for the position advertised. |
Summary of Complainant’s Case:
The Complainant says that he applied on-line to a job advertised there by the Respondent. He was required to provide details in the application – Name, Address, Experience - and he was asked to state his expected salary for the role. He says he was also expected to complete an on-line questionnaire that asked him questions about: · Gender · Civil Status · Family Status · Sexual Orientation · Religion · Age · Disability and · Race He says that these questions discriminate against him on the protected grounds laid out in the Equality Acts. He says that he was discriminated against on the basis of the discriminatory questions. When asked about his salary expectations the Complainant says he responded that his expectation was “€40,000 but willing to negotiate”. He says that he was subsequently advised that he was unsuccessful in his application on the basis that his salary expectation was too high for the role. He says that he was well qualified for the role having worked for many years in similar roles in companies in the same or similar business to the Respondent. The Complainant goes on to say that he sought information from the Respondent on what information was sought by the “cloud-based talent group” that the Respondent says it contracted to try to gather information for statistical analysis on the Respondent recruitment practices and outcomes. He says that he got a vague answer that “the data trends that are pulled are done so centrally at a very high level”. He says that he received no information on who actually accesses this data or who else it was shared with. He says that, in any event, the storage, handling or otherwise processing of the data is secondary to the fact that this data should not be collected in the first instance as it results, or likely results, in discrimination. |
Summary of Respondent’s Case:
The Respondent says that it is one of the country’s leading providers in the pensions and investment area. The business employs 350 people in Ireland. They say that the complainant applied for the role of Pensions and Investment Administrator. He was not successful in that application and his interpretation of why is the subject of this complaint. They say that the Complainant completed an on-line application for the role. This included information on notice period required, salary expectation, resume, contact details and diversity questionnaire. The Complainant, in his application set his salary expectation at €40,000 per annum. The Respondent had an established band of €28,000 to €32,000 for the role. They decided that the Complainants expectation was well outside the remuneration for the role and they decided to reject his application on that basis alone. They say that for this role they had in excess of 150 candidates and the process of bringing this down to a manageable level to interview, besides qualifications meant rejecting applications where the salary expectation was well outside the Respondent’s decided salary band. They say that as part of all applications to roles within their organisation, applicants are asked to complete a diversity questionnaire. Applicants are given the option to answer the questions with the response “Prefer not to say”. The sharing of the information sought is entirely voluntary. They say that the completed forms feed in to a Diversity Monitor. These questions on candidate diversity are not base on the discriminatory grounds but focus on the diverse range of demographics within the organisation’s population. They say that the following is included as part of the application process for all candidates: “At Standard Life we believe having a diverse, inclusive culture helps us deliver a great experience for our customers and provides an environment that attracts talent to want to join us and choose to stay, where all our people can reach their potential and feel they can be themselves. We strive to attract a broad mix of talent and will appoint the best candidate regardless of sex, gender reassignment, race, nationality, marital or civil partner status, religion or belief, sexual orientation, disability or age”. They say that this is included in their Standard Life’s Diversity and Inclusion Policy. They say that the company has signed up to the Social Mobility Compact and is recognised as a champion for their work in this area. They say that the purpose of the diversity questionnaire is to enable them to obtain reports on the statistics of diversity across a pool of candidates. This information is fed in to an external company contracted to collate the information provided – or not as the candidate chooses – so as to provide the company with a report on how they are performing against their diversity expectations. They say that only a small number of senior managers in the organisation can access these reports and that there are no named individuals cited in these reports. They made the point that none of the HR or hiring managers associated with filling this role have any access to these reports and the hiring manager gave evidence that she was totally unaware of the reports or the organisation that produces them. She said that the only information she received that caused her to reject the Complainant’s application was his salary expectation. They say that beyond the Complainant’s assertion that the questions, in the questionnaire, were discriminatory, based on 8 of the 9 protected grounds, there was no evidence adduced to show that the Complainant was discriminated against on the any of these grounds versus how any other applicants were treated. They made the point that in not having access to the information supplied (or not) in the diversity questionnaire there was no way that the hiring manager could have discriminated against the complainant on the basis of any response he might have given to the diversity questions. Their company policy forbids such discrimination. In the argument about the Burden of Proof in these circumstances the Respondent says that Section 85A of the Equality Acts 1995-2015 sets out the burden of proof that applies to claims of discrimination. It provides that where facts are established by a Complainant from which discrimination may be inferred, It shall be for the Respondent to prove the contrary. In these circumstances the Complainant must demonstrate that a Prima Facie case of discrimination exists and that this must be “Evidence which in the absence of any convincing contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred” (Dublin Corporation v Gibney EE5/1986). The Respondent goes on to say that they consider the arguments of the Complainant speculative and unsupported by any evidence or corroborative documentation. In this regard they say that they are relying on the Labour Court decision in Arturs Valpeters v Melbury Developments[2010] 21 s, that E.L.R. 64, which concluded, on the circumstances in which the probative burden of proof operates, that – “Section 85A of the Acts provides for the allocation of the probative burden in cases with its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions to this evidential rule” |
Findings and Conclusions:
I find that there is convincing contradictory evidence from the Respondent to the Complainant’s assertions of discrimination. I find that these assertions are not supported by evidence of actual discrimination. Merely stating that the questions in the questionnaire were discriminatory was not evidence that the Complainant was discriminated against by the Respondent. I accept the evidence of the hiring manager that she had no idea that the questionnaire existed. She had no access to it. I accept that she made the decision not to call the Complainant for interview based exclusively on his salary expectation, which was well out of line with the Respondent’s decided salary band. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
I find that the complaint fails. |
Dated: 21/06/19
Workplace Relations Commission Adjudication Officer: David Mullis
Key Words:
Discrimination in Hiring. |