Complainant

Respondent

Anonymised Parties

Complainant

Respondent Company

Representatives

Michael O'SullivanArra HRD Ltd

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-00020778-001

25/07/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act and has submitted that he was discriminated against  by his prospective employer by reason of his family status, age and in access to employment (CA-00020778-001)

The Complainant completed an application form  on 13/06/18 for the Administrator Job advertised by the Respondent Company  on 05/06/17, the Complainant was notified on 20/06/18 that he was shortlisted to compete in a selection process which included first round interview scheduled for 12pm on 25/06/18.

The Complainant’s interview was conducted by the Respondents  National Programme Manager (NPM)  and Office Manager (OM).

In the course of the interview, the Complainant was asked numerous questions including “ if he was  still caring for his family members”. Further it is alleged it was stated to him that “This is a junior role and  why are you applying for this job at this stage of your career?" and  "Would you be happy working in a junior role, would you get bored?"

The OM also stated to the Complainant that "clearly you have gained considerable experience in your roles over the years" and posed the question "do you see yourself in an administration role for the rest of your career?"

At the end of the twenty minute interview the Complainant was informed by the NPM that candidates will be notified on 29/06/17 whether or not they have been selected for second round interview. As the Complainant did not receive notification regarding second round interview,  he emailed the NPM  on 04/07/18 to enquire if he was being selected for second round interview.

On 04/07/18 the NPM  informed the Complainant that "we had a high volume of applicants and unfortunately on this occasion you were not successful in your application for the administration position”.  On 04/07/18 the Complainant emailed the NPM requesting feedback on his interview and the reasons for his non-selection.

On 09/07/18 the OM informed the Complainant that "while you were clearly very experienced, the majority of your experience to date was on a managerial level and not an administrative position. This Administrator role with the Respondent Company would have less requirement for your management and leadership skills and more for day to day routine administrative tasks"

Unsatisfied with the reasons given for non-selection, the Complainant made a Data Protection Access Request on 09/07/18 for copy of his records regarding the selection process he competed in. On 18/07/18 the Complainant received registered letter from the Respondents Chief Executive Officer (CEO)  which included "the entirety of data retained by the Respondents" in relation to the Complainant’s candidacy in the competition for the

Administrator job. The CEO states that "in so far as any other matters arise in relation to the recruitment of Administrator, there is no reference and no retention of data whatsoever in relation to the Complainant”.

The data included: 1) Notes penned by the NPM on the cover page of the Complainant’s CV,   the NPM’s notes” re the Complainant’s interview,  Notes penned by the OM on

the cover page of the Complainant’s CV, the OM’s notes re the Complainant’s

interview, and the  Marking system for Administrator Role with rubrics and percentages

awarded.

In advance of receiving data under access request, the Complainant invoked the feedback procedures in accordance with the Respondents  Public Feedback and Complaints Policy and Procedure by email to the OM at 09.24 on 18/07/18 for the attention of the Respondents  CEO.  The Complainant submits this email documents the inappropriate questions posed by the interview panel during the Complainant’s interview on 25/06/18.

On receipt of data in registered letter received at 10.07 on 18/07/18, the Complainant emailed the OM on 19/07/18 to query the absence of assessment criteria data

specifically requested to recount the decision making process and examine verifiable objective reasons for non-selection. In examining notes penned by the interview panel, the Complainants submits there is direct evidence in the interview notes that substantiate the Complainant’s statements in his feedback sent to the  CEO at 09.24 on 18/07/18 regarding inappropriate questions. This is verified in a note recorded by the NPM regarding  the Complainant’s answer to her question involving his caring for family members.

In notes penned by the OM, it is evidenced the notes include the term "junior role" stated

by the NPM in her questions "this is a junior role, why are you applying for this job at this stage of your career? Would you be happy working in a junior role, would you get bored?" The OM  also includes the word "future" double underlined which relates to her question "clearly you have gained considerable experience in your roles over the years, do you see yourself in an administration role for the rest of your career?".

The Complainants has submitted that upon  examination of the Marking System For Administration Role, it is evident the assessment template used for standardising evaluation of interview results is deficient as there is an absence of transparent, objective and verifiable data to demonstrate fair selection procedures and how interviewers arrived at the percentages awarded for each assessment rubric.

Due to the interview panel’s application of inconsistent, deficient and unreliable assessment of the Complainant’s application for the job, at 15.08 on 18/07/18 the Complainant sought from the OM a  copy of the Respondents Selection and Recruitment Policy and Procedures implemented during the selection process.

On 19/07/18, following completion of examination of interview data, the Complainant confirmed with the OM  by email the totality of itemised data received and queried absence of data re the Complainant’s order of merit in the competition and absence of

interview questions. As a result of the OM’s  nonresponse to the Complainant’s

correspondence and information requests on 18th and 19th July, the Complainant resent the email invoking the Respondents Grievance/Feedback Procedures directly to the Respondents CEO on 20/07/18.

 As a result of resending this email, the Complainant received a reply email on 20/07/18 from the CEO stating that she would reply to this  email on her return on 07/08/18. On 23/07/18 the Complainant received on behalf of the CEO  a registered letter from the NPM acknowledging correspondence on 18th and 19^th July 2018 and stating the CEO is on leave and will respond on her return week commencing 13/08/18.

In response, the Complainant outlined in an email on 23/07/18 the discrepancy in the NPM’s letter regarding the CEO’s return date to deal with matters and reminded her about the expiry date for receipt of data under GDPR and relevant Acts and that failure to complete the data request in time will result in a complaint to the Data Protection Commissioner to uphold the Complainant’s rights in this regard.

On 25/07/18, the Complainant received a registered letter from the OM dated 24/07/18 regarding invoking Section 91, subsection 5 of the Data Protection Act 2018. In response, the Complainant pointed out the OM’s failure to include reasons for this delay in accordance with Section 91 Subsection (6) “A notice in writing referred to in subsection (5) shall include the reason for which the controller is of the opinion that it requires additional time to consider the request made under subsection (1)”. As the Complainants  representatives changed the date for dealing with the Complainant’s feedback/complainant from 7^th August to 13th August to 17th August, and failed to furnish the data requested to which the representatives have direct knowledge of and access to, and have failed to include the reasons for additional time to consider the request, the Complainant was no longer confident that these matters will be dealt with satisfactorily by the

Respondent Company.

To this end, the Complainant informed the OM by email on the 25/07/18 of his intention to refer the matter to the WRC for adjudication and attached copy of dispute concerning the Complainant’s claims that he was discriminated against by the Respondent Company on grounds of Family Status and Age contrary to Employment Equality Act 1998 Section 6 (2)(c), 6 (2)(f) and Section 8 (1)(a) and in relation to access to employment. In view of the factual basis herein, it is the Complainant’s submission that he was denied access to employment as a result of information gained from inappropriate interview questions that had nothing to do with his eligibility or suitability to carry out the duties of the advertised post which amounts to discrimination on grounds of age and family status.

The Complainant submitted that discrimination is further supported by causal connections between the deficiencies identified in the selection process and the outcome, and that the competition for the aforementioned job was conducted in a manner that falls far short of the standards of objectivity, fairness, transparency and good practice that is reasonably expected.

This Complaint was received by the Workplace Relations Commission on the 25^th July 2018.

The Respondent rejects the claim made by the Complainant that he was discriminated against in relation to age, family status and access to employment arising from his application to the Respondent Company for the position of Administrator.

The statements submitted on behalf of the CEO, the NPM and the OM set out their respective roles in the recruitment process of the Administrator. They include, inter alia, details on the process of shortlisting the Complainant, interviewing him for the role and assessing him against the requirement of the role from his interview and his application documentation.

The Respondent submitted that collectively, along with written and oral evidence,  a fair and transparent process has been demonstrated in the selection of an Administrator and shows that the Complainant was assessed in a manner which did not discriminate against him in relation to any of the grounds complained of.

The Respondent submitted that the Complainant has submitted on a regular basis, voluminous documentation that is frivolous, vexatious and containing direct attacks on the integrity of the employees of the Respondent Company and with particular focus directed at the CEO, the NPM and the OM. The Respondent further submitted that the continuous harvesting of information through social media, by the Complainant, in relation to the employees of the Respondent Company amounts to an abuse of process.

In the circumstances of this case, the Respondent submitted that the burden of proof rests with the complainant and Section 85A of the Employment Equality Acts places on him the requirement to establish facts from which it maybe presumed there has been discrimination. The Respondent cited the cases of Mitchell -v- Southern Health Board, McCarthy -v- Cork City Council and Conway -v- Public Appointments Services.

In Kathleen Walsh Moore -v- Waterford Institute of Technology (EDA 042), the Labour Court stated that in cases involving filling of posts its is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers.

The Respondent submitted that the statements of the NPM and the OM on the interview and scoring of the Complainant along with the CEO’s statement on how the selection decision was made,  show no form of discrimination  towards the Complainant and demonstrates that he was assessed against his application documents and his interview.     

The Respondent submitted that the selection decision was made on the basis of determining the right person with appropriate level of skill to perform basic administrative duties and in that respect the case of O’Halloran -v- Galway City Partnership  (EDA077) states that the qualification criteria are a matter for the employer  in every case as along as they are not indirectly discriminatory.

Ultimately, the Respondents submits that the Complainant was not discriminated against in relation to age, family status or access to employment.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in the course of this hearing by both parties. In particular, I have considered the voluminous submissions and correspondence from the Complainant along with the 121  questions posed to the CEO, the 162 questions posed to the NPM and the 138 questions posed to the OM.

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 and  having considered the evidence from the Complainant and the Respondent, I have to find that the Complainant has not discharged the initial probative burden in respect of the allegation of discrimination by reason of age, family status and in access to  employment.

Further, due to the sensitive nature of the issues involved in this case I have anonymised the name of the parties.

I find that the Complaint (CA-00020778-001) made pursuant to Section 77 of the Employment Equality Act, 1998, fails