Complainant

Respondent

Anonymised Parties

A Candidate

An Electrical Firm

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-00026060-001

06/02/2019

The Complainant contends she was discriminated against in relation to access to employment arising from an interview she attended on the 26th October, 2019. This is denied by the Respondent. The Complainant’s complaint was received by the WRC on the 6th February, 2019.

I have decided to exercise my discretion to anonymise the parties.

The Complainant had an extensive career history and in particular in administration. Arising from the closure of her previous work place she found herself out of work. The Complainant contacted a recruitment agency and secured an interview with the Respondent firm for a part time administrative post. The interview took place on the 26th October, 2018. The Complainant was interviewed by the owner of the Respondent firm and a staff member. The Complainant advised that nearing the end of the interview, which in the Complainant’s view went well, the Respondent asked the following three questions:

1.       The Complainant’s age

2.       Whether the Complainant was “married, single or otherwise”

3.       “Have you [the Complainant] children”

The Complainant stated that she was taken aback by these questions which she regarded as totally unacceptable and that at the time, she looked at the staff member for a reaction. The staff member made no comment. The Complainant submitted that she reluctantly answered these questions but felt very uncomfortable in doing so. The Complainant submitted that these questions had absolutely no bearing on her ability to do the job in question. The Complainant also submitted that if she were in any other situation other than a job interview she would have refused point blank to answer.

The Complainant provided the following information also:

·         That on the 30th October, 2018 she received an email from the recruitment agency advising that her application for the post had been unsuccessful;

·         That following the interview she was stressed about her future employment prospects due to the questions regarding her age, marital status and whether she had children;

·         That she emailed the recruitment agency and complained about her treatment at the interview;

·         That on the 31st October, 2018 she received a response from the recruitment agency which stated “They are inappropriate questions. [the Respondent] has not asked them with other candidates previously”;

·         The email of the 31st October, 2018 also stated “….there is a sick leave in question for this position and those questions although inappropriate were asked to help see if you are a suitable candidate for the role keeping the situation in mind. I cannot disclose the exact details but take it from me there was a reason why he asked those questions. I apologise if he made you feel uncomfortable in any way. He is old school in his approach”;

·         That on the 26th November, 2018 the Complainant sent a Notification of complaint to the Respondent, notifying him of her complaints under the civil status, family status and age grounds. The Complainant wrote details of her complaint on the Notification form, outlined the three questions set out above and stated “I was shocked by these questions and felt very uncomfortable as knew they were inappropriate and against the law. I looked at the staff member for a reaction or comment but she said nothing. I reluctantly answered as felt under pressure to do so”;

·         That the Respondent replied to the Notification on the 7th December, 2018 and inter alia stated – “….[Complainant] did a very good interview & came across as very friendly & competent & very strong in administration. At the end of the interview we chatted about different things including hobbies & interests. If [Complainant] feels I asked inappropriate questions I do apologise as this was not my intention & it had no bearing on her interview or the fact that she was unsuccessful in getting the position. In fact the final decision was between [Complainant] & the successful candidate.

[Complainant] seemed a bit nervous at first but then did a strong interview so at the end we just started chatting in general. My impressions when she left were good so I am sorry if she felt otherwise.

Having never been in this position before I don’t have a normal practice. All I can say is my office staff range from mid 20’s to mid/late 50’s & are all part of a good team who I hope enjoy working for my company. My intention was never to make [Complainant] feel uncomfortable in fact it was the complete opposite”

It is the Complainant’s position that the Respondent has never denied asking the three questions during the interview, that in the real world setting of a job interview asking a recently unemployed mature person their age in order to relax them would have the direct opposite effect, and that the intention of the Respondent cannot be taken as a valid reason or excuse for the Complainant’s treatment at interview. The Complainant stated that the questions showed clear bias on the part of the Respondent, whether intentional or otherwise which constituted discrimination on the marital status, family status and age grounds contrary the employment equality legislation.

Prior to the adjudication hearing, the Respondent wrote to the WRC as follows:

“I refer to the complaint…..The interview and the subsequent chat was attended by [Staff Member] who arranged the interview with [Agency] and sat in on the interview as I valued [Staff Member’s] opinion and wanted her input.

I thought the interview went well and after the interview we had a chat about life in general & I asked if [Complainant] had any Tipperary connections as I was a Tipp man……

Whatever the conversation went onto next I can’t remember but I enquired about [Complainant’s] age but immediately I insisted [Complainant] didn’t answer that as “I shouldn’t ask a woman her age” and then I went on to tell that I was 58 yrs of age and old enough to remember whatever we were chatting about. So the age question was in that context and not part of the interview.

Needless to say I was shocked to get this letter…..”

The Respondent had asked the Staff Member present at the interview to write out her thoughts on the matter and this was also received by the WRC prior to the adjudication hearing. The Staff Member stated:

“I was present at an interview that took place…..on the 26th Oct 2018. The interview was with [Complainant].

[Complainant] came in at 8.30 for her interview for a part time position in accounts & payroll. The interview in my opinion went very well & was very casual & friendly. When the interview ended [Respondent] started chatting with [Complainant] about where she lived & it was general chit-chat. It was at this stage that he asked her if she was married or had kids he then told her his age & asked her hers but then quickly added that he wasn’t serious & “she didn’t have to answer”.

As far as I’m concerned this happened after the interview finished & was just [Respondent] making conversation, it didn’t come across as anything other than that to me.

Having worked with [Respondent] I can honestly say he would not insult anyone & is a genuine honest & friendly person…..”

At the adjudication hearing, the Respondent stated:

·         That although the post was advertised as an administrative post, a key role of the job as evident from the job description, was managing the company’s payroll systems and that he was primarily seeking to appoint a person who had experience in accounts and payroll and with the company’s payroll systems;

·         That the Complainant had more experience in administration and that her experience in payroll did not come across at interview;

·         As regards the age question, the Respondent stated that he asked the Complainant her age but he said that he immediately asked her not to answer it as he should not have asked a woman her age. The Respondent stated that he did not think the Complainant answered the question;

·         As regards the marital status question, the Respondent stated that he asked if the Complainant was married, that this was a casual question, that he felt the question was “harmless” and that it didn’t have any bearing on the interview;

·         As regards the family status question, the Respondent stated that he asked if she had any offspring, then proffered that he had one daughter and he felt that this was also a “harmless” exchange;

·         That the successful candidate was aged in or around 57 years;

·         That the Complainant did a good interview, that she was friendly and willing to learn;  

·         That he strongly contests that the questions had any bearing on the result of the interview and was amazed to receive the complaint;

·         That he accepted the three questions would be inappropriate if asked at the interview but that the interview was over when these exchanges took place;

·         That he did not know what the recruitment agency was referring to in their comment about sick leave;

·         That he had conducted many interviews and had never had a previous complaint to a tribunal;

·         That he apologised if he upset the Complainant, that was not his intention, that he wished the interview to be conducted as a normal conversation and to make the candidate comfortable.

After the adjudication hearing on the same date – ie 9 December, 2019, the Respondent furnished the job description as advertised by the recruitment agency and his notes from the Complainant’s interview. The Respondent confirmed there were a total of 47 applicants for the post.

The issue for consideration is whether or not, the Respondent discriminated against the Complainant in terms of section 6 of the Employment Equality Acts [1998-2018] and contrary to Section 8 of the Acts, in relation to access to employment. Section 6 of the Employment Equality Acts [1998-2018] states as follows:

“6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

( a ) 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 specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

         i.            exists,

       ii.            existed but no longer exists,

     iii.            may exist in the future, or

     iv.            is imputed to the person concerned………..

( b ) ………

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

a)      ……

b)      that they are of different civil status (in this Act referred to as “ the [ civil status ] ground ”),

c)       that one has family status and the other does not (in this Act referred to as “ the family status ground”),

d)      ……,

e)       ……,

f)        that they are of different ages……(in this Act referred to as “ the age ground”),

g)      ……,

h)      …….,

i)        ……. “

Section 85A of the Employment Equality Acts [1998-2018] sets out the burden of proof which applies to claims of discrimination. In effect, it provides 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. Section 85A(1) states as follows:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

In Southern Health Board v Mitchell [2001] ELR 201 the Labour Court considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the Claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

This approach has been endorsed and elaborated upon in several cases by the Labour Court including in Cork City Council v McCarthy EDA 21/2008, where the Labour Court stated:

“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 particular 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.”

In the present case, the asking of the three questions is not in dispute. Rather the key issue of dispute is whether the questions formed part of the formal interview. The Complainant stated she was shocked by the three questions and that they made her feel very uncomfortable. The Respondent accepted the questions would have been inappropriate if they were part of the interview but that the interview was over by the time these exchanges took place. The Complainant disputed this and stated that the Respondent did not tell her the interview was over before these exchanges took place – but that he did say “we have covered everything”.

In case ADJ-00005366 - A Government Department Employee V A Government Department, in the course of an interview for promotion, the candidate was asked the following three questions:

1.       Are you a married woman?

2.       Do you have children?

3.       How old are your children?

In that case, the Respondent maintained that the context of the questions was that he “was simply trying to put the Complainant at her ease. The questions asked were not intended to be intrusive. This was intended to be a “getting to know you” exercise and nothing in particular was meant…..” . The Respondent in the case submitted that the questions were “irrelevant” to the outcome. In her findings the Adjudicator stated:

“There was no clear indication that this “context” I was     invited to consider as being at the heart of the [Respondent’s] reasoning was in fact made known to the Complainant in the course of the interview. The   Respondent witness says it was, and has placed emphasis on the …. use   of the word “irrelevant”. Having drilled down into the minutiae of [the Complainant’s] personal   obligations and commitments [the Respondent] I find did not make it clear to the Complainant that he wanted her to understand that she would find him to be a most flexible employer. In any event, laudable as this sentiment might be, there is an underlying assumption that somebody in the Complainant’s position would require more flexibility in the position than someone with   different or lesser external commitments…….It was ill-advised of the [Respondent] to have so pointedly obtained information that had nothing to do with this candidate’s   suitability for a position, and a position for which she had determined she was eligible to compete”.

I have carefully considered the submissions, oral and written, made to me in the course of my investigation as well as the evidence of both parties at the adjudication hearing and it is my decision that the three questions must be regarded as having been asked during the interview. In my opinion, an interview is a formal setting from beginning to end. Even if it were the case, which is disputed between the parties, that the Respondent had conveyed to the Complainant that the interview was over by the time these exchanges took place, the proximity of time between the formal interview and any general chat afterwards, renders it highly unlikely and improbable in my view, that a distinction could have been made between both situations.

I now wish to consider whether but for the questions, the Complainant would have been appointed to the post. The Complainant stated that she felt the interview went well and the Respondent has confirmed she did a good interview. In terms of the position advertised the Respondent submitted at the adjudication hearing that a key role of the job was managing the company’s payroll systems, that the Complainant had more experience in administration and that her experience in payroll did not come across at interview. The job specification was submitted to me after the interview and I note it contained duties such as docket control, payroll duties, experience with company payroll systems, administrative support for the accounts team and experience in a construction environment. I have also considered the Respondent’s note on the Complainant’s interview which inter alia, stated, “V strong on Admin +” and “No Payroll Experience…..Is Willing to learn Payroll”. This confirmed what the Respondent had stated at the adjudication hearing.

In the case of Eleanor O’Higgins v UCD[2013] 24 ELR 146, the Labour Court applied the following principles to assess whether the Complainant had established a prima facie case of discrimination with regard to a recruitment and interview process:

1.       It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination;

2.       If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for;

3.       It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts;

4.       In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination;

5.       The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result;

6.       A lack of transparency in the selection process combined with an absenceof any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination;

7.       Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out;

8.       The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.

In applying the above principles in conjunction with the evidence, documentation and submissions, I find that the Complainant has established facts in relation to prohibited conduct such that she has successfully shifted the burden of proof to the Respondent. In this regard, I find that the Respondent has not rebutted the burden of proof. I decide the questions were discriminatory, they sought to elicit information from the Complainant about her civil and family status and age and therefore contravened the provisions of the Employment Equality Acts [1998-2018]. This information was not relevant to the interview and indicates that factors other than the stipulated criteria for the post were being considered by the Respondent. I find the Complainant was put in an uncomfortable position as a result and that notwithstanding her upset by the questions, she felt obliged to answer.

However, I do not find that the Complainant was not selected by reason of the discrimination she experienced. There were clear criteria for the post which were furnished to the Complainant in advance of the interview and the Respondent was consistent throughout in terms of his priority duties for the post.

For the reasons outlined, I decide this complaint is well founded. I order the Respondent to pay the Complainant redress of €7,500 in compensation for the breach of the Employment Equality Acts [1998-2018]. The award is redress for the infringement of the Complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

I also order the Respondent to conduct a review of its selection process to ensure that it conforms with best practice in terms of equal opportunities on the nine discriminatory grounds prescribed in the Act. This review should be completed within six months of the date of this Decision

A Candidate V An Electrical Firm