Complainant

Respondent

Parties

Philip O'Malley

Coghill & Hickey Solicitors

Representatives

The claimant represented himself

Elaine Coghill/Eamonn Lawless

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-00021566-001

04/09/2018

In his complaint form, the claimant submitted that he was discriminated against by the respondent by reason of his gender by” discriminating against him in getting a job”. He submitted that he answered an advert for the position of temporary Legal Secretary to a firm of solicitors and that he received a “not so positive response saying that the company isn’t progressing my application due to lack of experience”. He asserted the company discriminated against him on the grounds of gender.

The claimant asserted that he had the necessary experience and credentials to be considered for the position. He stated that he became very upset when he was not called for interview and contended that he was advised by a journalist that the respondent “has indirectly discriminated against me because of lack of specific expertise, even though I have the necessary credentials and experience and the relevant recommendations to aid my progression into employment, which made me complete a complaint form and lodge formal procedures against the respondent for the stress that they have caused me”. He further asserted that the respondent had discriminated against him on gender grounds. The claimant stated that the relevant case law was Lynskey -v-The Board of Management of Coolmine Community School (2002). He submitted that in that case, the claimant alleged that he was discriminated against by the Board of Management

of Coolmine Community School asserting that the claimant alleged that his qualifications,

experience and service rendered him a more suitable candidate when looking for

appointment. The respondent stated that the Selection Committee had the discretion

to decide on the most suitable candidate, and it denied the allegation that the

Committee did not apply a reasonable and fair manner of selection and that scrutiny

of credentials by applicants should be taken into consideration at the time of

processing information from potential applicants.

Held by the Equality Officer in reviewing the applicable law and citing with approval Dublin

Institute of Technology and a Worker (DEE994) stated that it was not the Tribunal’s function

to determine who was the most suitable candidate for the post but to determine whether the

sex or marital status of the complainant, or the appointee, influenced the decision of the board.

In so doing the tribunal determined the claimant was discriminated against on the ground of

gender in terms of section 2 (a) of the Employment Equality Act, 1977 and contrary to section

3 of that Act in the way it dealt with the promotional competition for the post of Deputy Principal and awarded him EUR5,000 compensation”.

The claimant contended at the hearing that the main role of a legal secretary is to provide administrative support for legal professionals and that the duties are to prepare and type various legal documents including appeals as well as fielding incoming calls and organising the diaries of legal executives. The claimant submitted his resume into evidence and stated that “the onus is on the candidate to underline such expertise from their resume to the interviewing panel when called for interview by relevant industries”. He submitted that it is imperative for industries not to directly or indirectly discriminate against candidates, “that the facts speak for themselves and the respondent failed to call him for interview”. The claimant contended that there was no specific or general rule in the industry that legal secretaries should be a specific gender under equality legislation as long as the candidate has the expertise and credentials to do the job at hand.

The claimant said at the hearing that he was shocked with the respondent’s defence; his resume was based on advice from a high-end recruitment agency and the claimant asserted that he had excellent typing skills. He contended that the respondent’s explanations did not wash and that the reference he had submitted spoke volumes. The claimant said he worked in a large legal practise prior to the economic crash and everyone had a large array of skills. He said it was not a matter of qualifications – it was about principle. The claimant asserted that he was discriminated directly and indirectly on gender grounds by not inviting him for interview. The claimant asserted that the indirect discrimination was based on access to employment and conditions of employment. The claimant said he had read the advertisement on “indeed” and that it had not fully reproduced what the respondent had submitted to the law society.

In a post hearing submission received on the 15.08.2019, the claimant referred to the documentation by the Respondent sent to him on the 2nd day of August

2019, and ”after seeking advice from my acquaintance who is a reputable employment

advisor with a multimedia organisation, I respond to the Respondents’ claims as

follows: -

After reviewing the anonymised Resumés of the applicants for the position of

Legal Secretary with the respondent firm

I honestly can’t understand the position of the Respondents’ saying that this

discrimination application is either vexatious or frivolous, and I would draw your

attention to the Employment Equality Acts of 1998-2008, part a) and again I

would ask the Respondents’ to further read my two submissions to this

application to further illustrate this case.

After reviewing all such enclosed Resumés, and seeking relevant advice, there’s

not much comparison to the applicants and to my Resumé, so I can’t understand

why the Respondents’ failed in their recruitment process to call me for

interview?

On foot of these enclosures and my application, I am still of the view that the

Respondents’ failed in their duty to call me for

interview for the position of Legal Secretary and furthermore, they had the gall to

dismiss my Resumé as if it was treated like some dirt on the street, and I would call

upon the discretion of the Workplace Relations Commission to adjudicate on the

merits of the Appellant’s two written submission, and compared my Resumé together

with the anonymised Resumés of the applicants that applied for the said position and

take in the full facts of the case and use the Lynskey case as a test case for the wilful

neglect and harm that the Respondents’ have shown to me in overlooking me for

employment, and if this matter fails with this authority, I am prepared to go to the

Labour Court and other higher powers to seek an apology and reparation for the hurt

and distress caused to my good name.

With regards to the comments you wrote on my Resumé, these comments are

patronising to the jobseeker, and no such employer or organisation should have this

policy within their organisation. I have sat in on several mock and professional

interviews over the course of my professional career, and I have never seen this level

of contempt shown to potential jobseekers. It is my view and the view of the

employment expert that this is a flagrant disrespect of the employment laws and I hope

the Adjudicator finds in favour of these findings.

If this is to be called for another Adjudication Meeting, I shall attend under protest and

will issue a letter from the employment expert to this affect. No such practices should

be allowed to carry on in modern employment policies”.

The respondent denied any breach of the Act and asserted that the company was very proud of their quality standards and their recruitment policies. The respondent submitted their recruitment, selection and equality policies into evidence. The advertisement for the position was also submitted into evidence. It was submitted that CV’s were sought and on the basis of a review of the CV’s the Office Manager selected 6 candidates for interview. All 6 candidates were called for interview and five candidates attended. It was submitted that the shortlisting was entirely based on qualifications and experience. The respondent presented the assessors comments on the competencies set out in the claimant’s CV. The absence of reception / dictation / typing experience was highlighted and while acknowledging the skills listed by the claimant, it was submitted that many of them were neither needed nor relevant to the post. It was submitted that the accounting and financial experience set out in the cliamant’s CV was not a requirement for the job. The professional experience listed by the claimant was not relevant and the requirement at all times was for typing skills. There was no reference to typing /dictation skills in the claimant’s CV and that was what was required. There was no problem with the format of the claimant’s CV but the company did not know who typed it and it was unclear as to any dictation skills. It was submitted that the shortlisting process was in no way personal and that the claimant had failed to present a prima facie case of discriminatory treatment. In a post hearing submission, the WRC were furnished with the CV’s for the 6 candidates who were shortlisted.

In response to the claimant’ submission of the 13th August 2018, the respondent asserted that the candidates called for interview were invited to interview because “……. CV’s clearly indicated that they had typing and or dictation typing skills and or word/excel/computer literacy which were requirements for the job in question ……. we would like to point out as the respondent’s in this case that we do not accept that we have a duty to call a person for interview if their covering letter and CV do not indicate that they have the skills or experience required for the job”.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.

Section 85a of the Act requires that claimants discharge a burden of proof in equality cases …..

“… 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 Melbury v Valpetters (EDA 917), the Labour Court determined that mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The burden of establishing the primary facts is placed squarely on the complainant and the language of Section 85A admits no exceptions to this evidential rule”.

I note that in all, 29 applicants applied for the position of whom 2 were male and 27 were female. Six female candidates were short listed and called for interview. 5 female candidates attended for interview. Neither of the 2 male candidates were shortlisted. I have considered the respondents explanations for not shortlisting the claimant as well as the CVs of the candidates shortlisted by the respondent company. In examining the CV’s I note that candidate 4 had no experience either in law or administration and that her work experience was confined to waitressing. I also note that the job spec for the post states that the legal secretary will be expected to have “previous receptionist experience in a busy working environment”. Having considered the claimant’s CV, and the fact that he had extensive experience in administration in a law office, I am satisfied that he was as well if not better qualified than candidate number 4, who is female.

Accordingly, I am satisfied that the claimant has established a prima facie case of discrimination and having considered the entirety of the evidence and submissions presented by the respondent, I must conclude that the respondent has failed to rebut it.

Accordingly , I uphold the complaint and in accordance with Section 82 require the respondent to pay the claimant €2,000 compensation for this breach of the Act . I further require the respondent to review their recruitment policies with a view to ensuring that they comply with the Act.

The claimant has also alleged that in failing to call him for interview, the respondent also discriminating against the claimant indirectly. Indirect discrimination arises where a requirement or condition on the face of it applies equally to both men and women, but on closer examination in fact has a disproportionate adverse impact on members of one sex rather than another. As I have already concluded that the complainant was directly discriminated against by the respondent on grounds of gender, there is no need to address this element of his complaint.