Complainant

Respondent

Parties

Craig  Castle

Creedons College of Canine Studies, T/A Creedons Doggie Day-care

Representatives

 Appeared in Person  

 No Appearance by or on behalf of the Respondent

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00018082-001

22/03/2018

This is a claim of Discrimination on gender grounds on behalf of a Prospective Employee at interview on January 29, 2018. The Respondent, who did not attend the hearing denied the claim. While in correspondence with the WRC, the Respondent referred to her non-availability for the planned hearing on 8 January 2019. She was requested to comply with an application of postponement on exceptional grounds prior to the hearing but did not do so. Instead, on the Respondent sent in a Department of Social Protection document dated 23 July 2018 outlining her entitlement to benefit. She did not apply for a postponement prior to the hearing on January 8, 2019.

The Complainant is a British National who submitted a complainant of Discrimination dated 22 March 2018. He submitted that during an Interview for a Part Time Manager position on January 29 ,2018, he had been discriminated on gender grounds and in relation to getting a job. The Complainant submitted that he was the only male candidate in attendance for interview. There was no visible male presence on the premises. His interview lasted 15 minutes and did not incorporate a consultation of the submitted CV. He believed that he had been treated less favourably on gender grounds.

Complainants Evidence:

The Complainant submitted an on-line application for the position of Part time Manager at the Respondent business on January 25, 2018. He was inviting to attend for interview, he noted that there were no other males visible on the premises. He noted three females waiting and he took a seat. The Respondent interviewed alone and had the complainants C.V in front of her on a PC. He submitted that he had not been allowed to develop his points at interview as he was cut off before he could finish his intended example. He had a gut feeling that he was being interviewed differently from the others. He had significant training in management. The respondent told him that she was running late. His interview was noticeably shorter than other candidates by 10 -15 minutes. He did not receive feedback post interview

On February 1, 2018, he learned that he had been unsuccessful at interview. He submitted an ES1 form on 2 February 2018 which served to make a formal complaint of discrimination on gender grounds in relation to his attendance at interview

He requested to know:

1 how many males were interviewed?

2 how many applied?

3 gender of successful candidate

4 what proportion of the respondent staff were male?

He did not receive a response to this. The time for response elapsed and he proceeded to make a complaint to the WRC. He submitted that it should have been easy to provide responses to these requests.

The Complainant detailed his employment experiences and emphasised that his experience at the respondent interview on 29 Janay 2018 has heightened a sense of exclusion. He believed that he had been treated differently, both in the duration of the interview as well as during the interview. He was not permitted to give a full answer in response to a question on his management experience. He was hopeful of securing the position and he believed that the outcome was unjust. He felt diminished.

He did a small amount of research into the Respondent business and observed a strong female ethos on her social media site. He saw this as excluding men.

The position was re-advertising, but the complainant did not re-apply and was unaware if the post had been re interviewed. The Complainant said that he lost confidence Ans stopped applying for jobs. He felt disregarded by the Respondent.

The Complainant concluded by submitting that he perceived the reasons for unfavourable and different treatment was solely based upon his gender.

The Case was postponed in August 2018 at the complainants request on personal grounds and he told the hearing that he remained unemployed.

As requested, the complainant submitted an extract from the Position re-advertised on 15 February 2018.  He did not compete for this position. This was copied to the Respondent but did not illicit a response.

I did not meet the Respondent during this case. Communication to the Post Registration Unit prior to the hearing indicated that the Respondent had re located to Scotland and may have been on maternity leave.

On 15 May 2018, the Respondent filed a written response to the claim. She submitted that “the complaint has absolutely no merit and has come out of the blue” and hoped that he explanations can be re-iterated, and no further action would be necessary.

What followed appeared to seek to address the questions tabled in the ES1 sent on February 2, 2018.

1.       23 people were called to interview, 3 of whom were male. All were interviewed.

2.       Time allocated for Interview was 15 minutes, some ran over. All were asked identical questions; some responses ran over time.

3.       The Complainant had less management experience than other candidates.

4.       There was a short list of 3 applicants, the successful candidate was unable to take up the position due to personal family circumstances.

5.       Advertisement followed. The assistant mange applied and was successfully appointed, having a proven history with the company.

6.       She had not received the ES 1 notification.

The Respondent wrote again on 27 November 2018. This note confirmed that she was on maternity leave until March. She confirmed that she had employed men in the past. She wrote that the Industry has a much higher ratio of females entering the industry and applying for positions. She fenced providing two combative CVs, but these were not received. She wrote that she was disappointed that the hearing was progressing.

On 15 December 2018, the WRC wrote to the respondent seeking clarification on whether she was seeking a postponement and stressing the need to provide supporting documentation.

On 18 December the WRC wrote again to the Respondent, seeking supporting documentation if she was seeking a postponement of the January hearing on exceptional circumstances. Nothing followed until February 11^th, 2019, some four weeks post hearing, when a copy of DSP issued statement of benefit followed. 

I have considered all the evidence both written and oral presented to me. I was disappointed not to meet the Respondent at hearing. It struck me early in the hearing that her presence may have served to have assisted the complainant in considering both sides of the story. I accept that he was very hurt at how he believed he was treated at interview.

The Respondent did not submit a request to postpone the hearing prior to January 8, 2019. She was clearly advised of the necessary procedure. I am not able to accept a request for postponement some four weeks post hearing and without adherence to the procedure notified to her. The Complainant had already received a postponement in the case to attend to a family matter. He had adhered strictly to the postponement procedure.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in cases of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds there, it falls to the respondent to rebut the presumption. In Val Peters V Melbury Development [2010] 21 ELR 64, the Labour Court held that the complainant must first establish facts from which discrimination may be inferred …………There is no closed category of facts which can be relied on. They must be of “sufficient significance” to raise that presumption, based on credible evidence.

In the present case, the complainant submitted an ES1 form to address his first contention of discrimination on 2 February 2018. I explained at the hearing that this was a tool used by potential complainants under the Equal Status Acts in relation to the provision of goods and services and that provision did exist to table questions to seek information in accordance with Section 76 of the Employment Equality Legislation. Nonetheless, it placed the Respondent on notice that the complainant had enduring issues with the interview. It is regrettable that both parties did not take an opportunity to engage directly at that time.

In accordance with section 6(2)(a) of the Act, discrimination is taken to occur where 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 set down. Section 8 of the Act prohibits discrimination in the case of prospective employees.

The Complainant did not submit a comparator in the case and he accepted that the competition did not yield an appointed candidate. He wanted the hearing to take account of how he was treated at interview.

He contended that the Interview lacked transparency and was unfair. He believed that his male gender served to his disadvantage when judged against the respondent’s postings in favour of women in business.

In the case of Colm Mc Namee and Offaly Personal Assistant Service ltd. EDA 1841, the Labour Court in establishing a prima facie case of discrimination on disability grounds, eventually rebutted by the Respondent, accepted that the complainant’s exclusion from shortlisting, being wrongly and inconsistently marked, not called for interview inferred that discrimination had occurred.

In the instant case, the complainant began to feel on a “gut instinct “that men didn’t feature or benefit at the business. By way of proof, he referred to the absence of men and his thwarted attempts to provide full answers at interview, which upset him greatly. I can appreciate that job-hunting challenges everyone’s confidence and I can also appreciate that this is a job that the complainant believed he could do well. I appreciate that his social media research pointed him to the Respondents positive profile in women in management which served to strengthen that viewpoint. However, this is distinguished from the facts of McNamee.

 I note that this discovery prompted a negative response from the Respondent. However, the burden of proof requires more than evidence of unfairness and poor interaction at interview, it requires that the primary facts as alleged be proved in the first instance Mitchell V SHB [2000] ELR 201. The Respondent did not make an appointment from the interview on 29 January 2018.

I was unable to establish that the Complainant had achieved the Burden of Proof necessary in the case. He had not placed the Respondent in a position where she has a case to answer on this occasion as his evidence adduced was insufficient to shift the probative burden of proof of Discrimination on Gender Grounds against the Respondent.

I find the complaint is not well founded.

Decision:

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

I have decided that the complainant has not satisfied the burden of proof in this case. He has not made out a prima facie case of discrimination. The complaint is not well founded.