Complainant

Respondent

Parties

Paul Carolan

Abrivia Recruitment

Complainant

Respondent

Anonymised Parties

Representatives

Paul Carolan

Peter McInnes

McInnes Dunne 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-00017299-001

06/02/2018

The claimant submitted as follows in his complaint to the WRC

“ On 22/01/2018 I applied for the position of ‘Field Sales executive – FMCG’ through a

recruitment website who advertised the position on behalf of a third party recruitment agency

‘ the respondent company.

As a result of my application I was subsequently asked by Mr.D McS of the respondent company to resubmit my Curriculum Vitae which I did on the same day. Since my returned

application I had no further contact from Mr DMcS until Tuesday 06/02/2018 when I called him in relation to the position despite the fact that his advertisement clearly stated “All Applications will be considered and responded to in full”. Mr D McS confirmed that he had received my application but I was not considered without giving any reasonable explanation regardless of my qualifications and experience. My complaint is that in his advertisement he included the line “Looking for young ambitious candidate for a couple of different locations”. In my opinion Mr McS did not consider me for the position because my Curriculum Vitae includes a record of employment which puts me into a more mature category. My obvious experience and considerable qualifications puts me in the disposition of being too old for his or his employer’s requirements. Regardless of the legality of his advertisement or of its intention, I believe that I have been victimised by pure virtue of my age. I have kept a copy of the advertisement and material relating to my application.”

At the hearing , the claimant described how Mr.McS indicated he did not receive his CV   and asked the claimant to furnish it in Word. He got no confirmation of receipt of the CV and contacted the respondent company when he heard nothing after 2 weeks. It was confirmed to him that the position was filled. The respondent’s representative was polite but unsure according to the claimant – he said the respondent was not forthcoming when he questioned if there was anything wrong .The claimant then reviewed the advertisement for the position and took notice of the reference to young candidates. He described this as unlawful discrimination as he did not fit the criteria. The claimant did not accept that this was a mistake on the respondent’s part.

The respondent is a Dublin based recruitment agency and denied the complaint. While it was acknowledged that a prima facie case was established by virtue of the fact that the advertisement at issue contained a reference to “young” candidates , the respondent asserted that this was an error and was rectified as soon as it was brought to their attention. The company had never been the subject of any previous complaints.

It was submitted that the claimant’s application was unsuccessful because he lacked the necessary experience for the role and not because of his age. The position was for a Field Sales Executive with a leading FMCG multinational and Field Sales Experience was considered advantageous. It was submitted that the claimant’s recent career from 2010-2017 was predominantly in the public sector as a Clerical Officer – it was submitted that the claimant had no Field Sales experience and no recent retail experience. It was advanced that the claimant’s retail experience prior to 2010 was confined to the pub and off license sector while the respondent’s client was a food business not involved in the drinks sector. It was submitted that the claimant had no obvious business to business experience. Having considered all 66 applications for the position – including the claimant’s – the respondent forwarded only one application to the client .A redacted version of the CV was presented – the candidate had current experience of the FMCB Business to Business market , with significant experience in retail and a qualification relevant to the food industry.It was submitted that the claimant’s CV which was also presented demonstrated that the claimant did not match what was being sought by the client .It was submitted that the applicant whose details were forwarded to the client was a better match to the client’s needs than that of the claimant’s by virtue of the experience set out in the CV.It was submitted that the applicant was ultimately unsuccessful at interview.

It was submitted that the respondent did not know the age of the claimant or the chosen applicant and it was acknowledged that on the basis of the CV’s the claimant was more likely to be the older candidate .It was submitted that a mere difference in age is insufficient to prove discrimination.

The respondent accepted that the reference to young should not have appeared on the ad and accepted responsibility for same.It was contended however that the claimant was unsuccessful because of his lack of experience in key aspects of the role and not because of his age.

The respondent asserted that the advertisement was corrected as soon as it was brought to their attention and that they have consistently complied with equality legislation.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.While I acknowledge that the wording of the advertisement is such that an inference of discrimination can be drawn on age grounds , I find on the basis of the evidence presented by the respondent that they have successfully rebutted same and demonstrated that the claimant was unsuccessful as a candidate on grounds unrelated to his age . I am satisfied on the basis of the evidence presented that the grounds on which the claimant’s application was rejected related to the relevance of his recent work experience in the context of the role and key responsibilities of the job. Consequently I find against the claimant and do not uphold the complaint.

I accept   the claimant’s complaint that the advertisement was discriminatory on age grounds but as the claimant has no locus standi to bring this complaint,   I have no jurisdiction to investigate that element of the claimant’s complaint.