Complainant

Respondent

Parties

Abdel Hakim Mousli

Ttec

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-00028960-001

11/06/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998 and has submitted that he was discriminated against by his prospective employer by reason of his race and in getting a job (CA-00028960)

The Complainant made an application for employment with the Respondent Company and was informed by email on the 5th June 2019 that they were happy to proceed with the recruitment process.

The Complainant was informed that the process entailed 3 steps, with step 1 being a language assessment and step 2 being a language call with one of the team and will take around 3-5 minutes. Following the successful completion of these steps, the last step is an interview.

On the 7th June 2019 the Complainant had the language call with one of the team. The Complainant stated that the conversation, in French, was very general and included questions about how he spent his free time, travel and recent trips to the cinema.

The Complainant emailed the HR manager on the 10th June 2019 to find out the result of step 2 and he was informed by response that the language assessment was not a pass. The Complainant responded that he did not agree with that decisions as in his previous occupation he had been accepted as a French manager and concluded that the person who said he did not pass was a French racist. The communication continued between the Complainant and the HR manager wherein she explained, inter alia, that the Complainant could not move to the next step as he had some grammatical mistakes in the oral test.

The Complainant expressed utter shock at this result as he is French born, his first language is French and has lived in France until he moved to Ireland a number of years ago. The Complainant provided a copy of his National Identity Card from the French Republic. The Complainant confirmed that his parents are of Algerian background and is concerned that the individual who talked to him on the phone call discriminated against him on the basis of his name and his Arabic heritage.

The Complainant has subsequently taken up employment on the 15th July 2019 as a Sales Operational Specialist.

This Complaint was received by the Workplace Relations Commission on the 11th June 2019.

The Respondent did not attend the hearing of this matter.

It was noted that the respondents correspondence was returned undelivered as of the 14th August 2019. Further, an email was received by the Workplace Relations Commission from the Respondent Company on the 16th September 2019 indicating that the Complainant may have given the incorrect address of the Respondent Company and maybe that is why they had not received any written correspondence.

In the circumstances of this matter, I have carefully listened to the evidenced tendered by the Complainant.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within 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 of no exceptions to that evidential rule.

In the circumstances of this matter, I accept the bona fides of the Complainant and the somewhat bizarre decision wherein he was informed that he had not passed the language assessment step although he is a native French speaker, however, having considered the evidence from the Complainant, I have to find that the Complainant has not discharged the initial probative burden in respect of the allegation of discrimination by reason of race and/or in getting a job.

I find that the Complaint (CA-00028960) made pursuant to Section 77 of the Employment Equality Act, 1998 fails

Discrimination