Complainant

Respondent

Anonymised Parties

 Employee

Employer

Representatives

 Eversheds Solicitors

Owen Keany BL

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-00028186-001

05/05/2019

The Complainant is an applicant for a position with the Respondent. He claims he has been discriminated against by the Respondent due to his age and race.

The Complainant has worked indirectly for the Respondent. He applied for a position of Inside Sales Representative and Account executive (Arabic) in March 2019. He was rejected for the positions due to his age and nationality which is discriminatory.

He says the Respondent only hires younger people for such roles and mainly people from Egypt and Africa. Despite being a reasonable candidate his application was rejected out of hand due to his age and nationality (Egyptian Irish naturalised). He says the Respondent prefer foreign based candidates for African roles. The Respondent benefits from global tax rates by being based in Ireland and they should not discriminate against Irish residents when new jobs are created.

The Complainant has an email which evidences a Manager of the Respondent hiring candidates exclusively from Egypt or Dubai in which a Sudanese Arabic speaking employee was having his Arabic and English skills questioned. The Manager challenged the decision behind hiring the individual due to the normalised belief that only Egyptians with previous Respondent company experience were believed to be a good fit for Arabic sales roles which is discriminatory, and to consider contingent or internal company applicants. The Manager objected to a Sudanese hire, in error as the individual is of Somali origin. The Manager objected to having a Sudanese hire in the team as this is restricted to Egyptians from their Egyptian base.

The Complainant says the practice/condition /provision required by the Respondent for applicants to be shortlisted or having Respondent company experience in Egypt, Middle East or Africa is unjustifiable and without legitimate reason. The Complainant says the recruitment process is manipulated to favour certain people with certain national characteristics either directly or indirectly.

Two out of the three individuals selected for the role of Inside Sales Representative had a previous association with the Respondent having already held internal sales certifications through the Respondent or a Respondent contractor in Egypt. Such provision or condition can only be met by a certain race mostly Egyptians.

The Complainant sought the ages, nationality and country of residence of the comparator applicants shortlisted for the two roles by Form EE2 dated 17th June 2019. The Complainant says the data furnished is not sufficient to draw any conclusions on age although he can see that two candidates who were offered roles are younger than him.

The Complainant says he is a more suitable candidate than the candidate offered the role of Inside Sales Representative as he has worked in sales for longer. He worked in collections which involves negotiation with customers on licensing and payments. The Respondent claims they do not hire candidates from outside Ireland due to the costs, however this is contradictory as 8 out of 10 candidates shortlisted for the role of Inside Sales Representative were resident outside Ireland. The Complainant says a prima facie case of discrimination has been established due to the Respondents failure to provide information regarding the nationality diversity of the Arabic speaking employees of the digital sales department.

The Complainant relies on Portroe Stevedores v Nevins [2005] ELR 282 where it was held that since the facts necessary to prove an explanation would usually be in the possession of the Respondent it required cogent evidence from the employer to discharge that burden. Where an employer presents a series of unsatisfactory explanations or relies on a mere denial, a tribunal should be mindful that discrimination is “usually covert and often rooted in the subconscious of the discriminator”.

The Complainant also relies on the decision in Dublin City University v Horgan EDA0715/2007 that the Court must always be alert to the possibility of unconscious or inadvertent discrimination and real denials of a discriminatory movie, in the absence of independent corroboration must be approached with caution.

The Respondent denies discrimination in access to employment and submits no prima facie case of discrimination has been made by the Complainant.

S85 A  5 (1) of the Employment Equality Act which says:

“Where in any proceedings facts are established by or on behalf of a Complainant for 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.”

The Respondent relies on the Labour Court decision in Southern Health Board v Mitchell DEE011 (20110 ELR 201) and Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64.

It is only when a Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Complainant puts forward no facts or evidence to raise a presumption of discrimination.

In relation to the role of Inside Sales Representative Arabic in March 2019 the Respondent received 185 applications, 21 applications including the Complainant were selected to be further reviewed by the hiring manager. These were shortlisted into 10 applications for telephone interview. The Complainant was not shortlisted for interview as his CV said he spent the last seven years as a Credit Receivable & Payroll Analyst. This was not most relevant to a digital selling role. An offer was made to one person.

All of the ten shortlisted were of varying nationalities but all located in Ireland. The company does not seek details of nationality of applicants, and the applicants were a combination of nationalities.

The Complainant asserts his application was dismissed as he is an Irish naturalised citizen, but all ten shortlisted were based in Ireland. If the Respondent was seeking exclusively Egyptian nationals based abroad there would be additional costs for relocation and visas.

The Complainant asserts that he was not successful in his application for the role because of his age thirty-eight years, and that the Respondent routinely hires younger sellers. The Respondent does not seek or gather ages or dates of birth.

In relation to the role of Account Executive/Digital Sales (Arabic), there were 102 applicants, with 9 selected for CV review by the hiring manager. The Complainant was not selected. Offers were subsequently made to 3 individuals, one of whom was an Egyptian national based in Ireland. The individuals resided in a variety of locations.

The Respondent retains data on ages and nationality, which is entered voluntarily by staff. They currently have 707 employees in Inside Sales Department. There are 27 Egyptians and the average age is 34 years based on the information volunteered by staff.

Subsequent to the hearing the Respondent made further submissions that there were inadvertent errors in the information provided previously concerning the role of Inside Sales Representative. The Respondent received 185 applications for this role and that a keyword search based on the technical skills set out in the job description which was 21 applicants, but the longlist was 36 individuals. The complainant was selected as one of those 36 candidates. The list for telephone interview was 16 individuals and not ten. The Complainant was not one of the 16 selected for telephone interview. The Respondent clarified that there were 16 applicants shortlisted for that role ahead of the Complainant, rather than 10, and furnished information regarding the 16 applicants.

This Correction Order is issued pursuant to S88 of the Employment Equality Act 1998-2015. I have taken into account the submissions of the parties regarding the confidentiality of the information provided. All information provided has been anonymised. I decide the decision should not be anonymised.

I have considered carefully the written and oral submissions of the parties.

The Complainant alleges that he has been discriminated by the Respondent in relation to access to employment on the grounds of his age and race or nationality.

S6 of the Employment Equality Act 1998 defines discrimination on the age grounds as:

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

The Complainant is thirty-eight years old and is older than the candidates offered the role of Inside Account Executive and Inside Sales Representative. By form EE2 dated 17th July 2019 the Complainant sought the ages, nationality, and country of residence of the applicants shortlisted for the two roles.

Given the paucity of information available from the Respondent regarding age and nationality, I directed the Respondent furnish country of residence and dates of first employment for the candidates shortlisted ahead of the Complainant to facilitate my inquiry.

From information furnished by the Respondent, of the three candidates offered a role of Inside Account Executive, the candidate who resides in Ireland is 34 years old and date of first employment is 2009. The age of the other two candidates is not available, and their dates of first employment are 2009 and 2010 respectively.

The age of the candidate offered the role of Inside Sales Representative is unknown and date of first employment is 2003. At the hearing evidence was submitted that two of the candidates shortlisted for the role of Inside Sales Representative were 41 years and one 29 years. In the revised submission of the Respondent this was withdrawn. The known age of the candidates shortlisted for Inside Sales Representative in the revised submission were 26, 30, 34, 33 and 26 years. The dates of first employment and country of residence of six additional candidates whose details were provided after the hearing were not provided by the Respondent.

The burden of proof is set out in Section 85A(1) of the Employment Equality Acts 1998-2015 provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Labour Court in Valpeters v Melbury Developments Ltd [2010] 21 ELR 64 said in relation to the burden of proof:

“This requires that the Complainant must first establish facts from which discrimination may be inferred…..All that is required is they be of sufficient significance to raise a presumption of discrimination.” 

In considering the allegation of age discrimination made, it is significant the first date of employment of the candidate offered the role of Inside Sales Representative is 2003. The Complainant is 38 years and other candidates shortlisted for Inside Sales Representative whose ages are known are a mix of ages 26 up to 34 years. The age difference between 34 years and 38 years is not significant and does not raise an inference of discrimination.

Although there is a lack of information on ages of all candidates shortlisted ahead of the Complainant, certain facts have been furnished. I find a prima facie case of discrimination has not been shown by the Complainant.

The Complainant believes he is better qualified that the candidate offered the role of Inside Sales Representative. However, my role is to consider if there is evidence that the selection process was tainted by discrimination not to consider the merits of the applications as stated by the High Court in Irish Ale Breweries Limited trading as Diageo v O’ Sullivan.

The Complainant also alleges discrimination by the Respondent due to his nationality in relation to access to employment pursuant to s6 of the Employment Equality Acts 1998-2015.

S6 of the Employment Equality Act 1998 defines discrimination on the race grounds as:

 (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)….

The Complainant alleges he was discriminated against in relation to the same roles. He alleges he has been discriminated against due to his nationality as an Irish naturalised Egyptian. He claims the Respondent is recruiting Egyptians and Africans who are resident in Egypt and Dubai, United Arab Emirates not Ireland.

The Respondent does not hold information on the nationalities of the candidates save where this is volunteered. The Respondent provided information regarding the residence of some of the candidates.

There were three offers made to candidates for the role of Inside Account Executive by the Respondent, one candidate resides in Ireland, one in the Ivory Coast, one in Egypt. Of nine candidates shortlisted three reside in Egypt, two in Ireland, one in the Ivory coast, one in Qatar, one in the United Arab Emirates and one in Jordan.

Two of the candidates offered the role of Inside Account Executive have certifications from the Respondent or companies associated with the Respondent. The two individuals reside in Egypt and the Ivory Coast respectively. The Complainant asserts there is a practice of the Respondent to recruit from Egypt and the United Arab Emirates from internal staff or staff of contractors which disadvantages him as an Irish candidate and relies on an email from 2017.

There was 1 offer made to a candidate for the role of Inside Sales Representative who resides in Ireland. Ten out of sixteen of the candidates shortlisted reside in Ireland. There were no details of residence for the additional 6 candidates furnished by the Respondent following the hearing.

There is a paucity of information available from the Respondent regarding nationality. However, from the information provided by the Respondent the allegations made by the Complainant in relation to the recruitment process for Inside Sales Representative and Inside Account Executive are not substantiated. No prima facie case of discrimination on the race ground has been established and the complaint is not upheld.

I find a prima facie case of age discrimination has not been shown by the Complainant and the complaint is not upheld.

No prima facie case of discrimination on the race or nationality ground has been established and the complaint is not upheld.

Prima facie case of discrimination, burden of proof

Complainant

Respondent

Anonymised Parties

An Applicant

A Technology Company

Representatives

Joanne Hyde Eversheds

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-00028186-001

05/05/2019

The Complainant is an applicant for a position with the Respondent. He claims he has been discriminated against by the Respondent due to his age and race.

The Complainant has worked indirectly for the Respondent. He applied for a position of Inside Sales Representative and Account executive (Arabic) in March 2019. He was rejected for the positions due to his age and nationality which is discriminatory.

He says the Respondent only hires younger people for such roles and mainly people from Egypt and Africa. Despite being a reasonable candidate his application was rejected out of hand due to his age and nationality (Egyptian Irish naturalised). He says the Respondent prefer foreign based candidates for African roles. The Respondent benefits from global tax rates by being based in Ireland and they should not discriminate against Irish residents when new jobs are created.

The Complainant has an email which evidences a Manager of the Respondent hiring candidates exclusively from Egypt or Dubai in which a Sudanese Arabic speaking employee was having his Arabic and English skills questioned. The Manager challenged the decision behind hiring the individual due to the normalised belief that only Egyptians with previous Respondent company experience were believed to be a good fit for Arabic sales roles which is discriminatory, and to consider contingent or internal company applicants. The Manager objected to a Sudanese hire, in error as the individual is of Somali origin. The Manager objected to having a Sudanese hire in the team as this is restricted to Egyptians from their Egyptian base.

The Complainant says the practice/condition /provision required by the Respondent for applicants to be shortlisted or having Respondent company experience in Egypt, Middle East or Africa is unjustifiable and without legitimate reason. The Complainant says the recruitment process is manipulated to favour certain people with certain national characteristics either directly or indirectly.

Two out of the three individuals selected for the role of Inside Sales Representative had a previous association with the Respondent having already held internal sales certifications through the Respondent or a Respondent contractor in Egypt. Such provision or condition can only be met by a certain race mostly Egyptians.

The Complainant sought the ages, nationality and country of residence of the comparator applicants shortlisted for the two roles by Form EE2 dated 17th June 2019. The Complainant says the data furnished is not sufficient to draw any conclusions on age although he can see that two candidates who were offered roles are younger than him.

The Complainant says he is a more suitable candidate than the candidate offered the role of Inside Sales Representative as he has worked in sales for longer. He worked in collections which involves negotiation with customers on licensing and payments. The Respondent claims they do not hire candidates from outside Ireland due to the costs, however this is contradictory as 8 out of 10 candidates shortlisted for the role of Inside Sales Representative were resident outside Ireland. The Complainant says a prima facie case of discrimination has been established due to the Respondents failure to provide information regarding the nationality diversity of the Arabic speaking employees of the digital sales department.

The Complainant relies on Portroe Stevedores v Nevins [2005] ELR 282 where it was held that since the facts necessary to prove an explanation would usually be in the possession of the Respondent it required cogent evidence from the employer to discharge that burden. Where an employer presents a series of unsatisfactory explanations or relies on a mere denial, a tribunal should be mindful that discrimination is “usually covert and often rooted in the subconscious of the discriminator”.

The Complainant also relies on the decision in Dublin City University v Horgan EDA0715/2007 that the Court must always be alert to the possibility of unconscious or inadvertent discrimination and real denials of a discriminatory movie, in the absence of independent corroboration must be approached with caution.

The Respondent denies discrimination in access to employment and submits no prima facie case of discrimination has been made by the Complainant.

S85 A 5 (1) of the Employment Equality Act which says:

“Where in any proceedings facts are established by or on behalf of a Complainant for 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.”

The Respondent relies on the Labour Court decision in Southern Health Board v Mitchell DEE011 (20110 ELR 201) and Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64.

It is only when a Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Complainant puts forward no facts or evidence to raise a presumption of discrimination.

In relation to the role of Inside Sales Representative Arabic in March 2019 the Respondent received 185 applications, 21 applications including the Complainant were selected to be further reviewed by the hiring manager. These were shortlisted into 10 applications for telephone interview. The Complainant was not shortlisted for interview as his CV said he spent the last seven years as a Credit Receivable & Payroll Analyst. This was not most relevant to a digital selling role. An offer was made to one person.

All of the ten shortlisted were of varying nationalities but all located in Ireland. The company does not seek details of nationality of applicants, and the applicants were a combination of nationalities.

The Complainant asserts his application was dismissed as he is an Irish naturalised citizen, but all ten shortlisted were based in Ireland. If the Respondent was seeking exclusively Egyptian nationals based abroad there would be additional costs for relocation and visas.

The Complainant asserts that he was not successful in his application for the role because of his age thirty-eight years, and that the Respondent routinely hires younger sellers. The Respondent does not seek or gather ages or dates of birth.

In relation to the role of Account Executive/Digital Sales (Arabic), there were 102 applicants, with 9 selected for CV review by the hiring manager. The Complainant was not selected. Offers were subsequently made to 3 individuals, one of whom was an Egyptian national based in Ireland. The individuals resided in a variety of locations.

The Respondent retains data on ages and nationality, which is entered voluntarily by staff. They currently have 707 employees in Inside Sales Department. There are 27 Egyptians and the average age is 34 years based on the information volunteered by staff.

Subsequent to the hearing the Respondent made further submissions that there were inadvertent errors in the information provided previously concerning the role of Inside Sales Representative. The Respondent received 185 applications for this role and that a keyword search based on the technical skills set out in the job description which was 21 applicants, but the longlist was 36 individuals. The complainant was selected as one of those 36 candidates. The list for telephone interview was 16 individuals and not ten. The Complainant was not one of the 16 selected for telephone interview. The Respondent clarified that there were 16 applicants shortlisted for that role ahead of the Complainant, rather than 10, and furnished information regarding the 16 applicants.

I have considered carefully the written and oral submissions of the parties.

The Complainant alleges that he has been discriminated by the Respondent in relation to access to employment on the grounds of his age and race or nationality.

S6 of the Employment Equality Act 1998 defines discrimination on the age grounds as:

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

The Complainant is thirty-eight years old and is older than the candidates offered the role of Inside Account Executive and Inside Sales Representative. By form EE2 dated 17th July 2019 the Complainant sought the ages, nationality, and country of residence of the applicants shortlisted for the two roles.

Given the paucity of information available from the Respondent regarding age and nationality, I directed the Respondent furnish country of residence and dates of first employment for the candidates shortlisted ahead of the Complainant to facilitate my inquiry.

From information furnished by the Respondent, of the three candidates offered a role of Inside Account Executive, the candidate who resides in Ireland is 34 years old and date of first employment is 2009. The age of the other two candidates is not available, and their dates of first employment are 2009 and 2010 respectively.

The age of the candidate offered the role of Inside Sales Representative is unknown and date of first employment is 2003. At the hearing evidence was submitted that two of the candidates shortlisted for the role of Inside Sales Representative were 41 years and one 29 years. In the revised submission of the Respondent this was withdrawn. The known age of the candidates shortlisted for Inside Sales Representative in the revised submission were 26, 30, 34, 33 and 26 years. The dates of first employment and country of residence of six additional candidates whose details were provided after the hearing were not provided by the Respondent.

The burden of proof is set out in Section 85A(1) of the Employment Equality Acts 1998-2015 provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Labour Court in Valpeters v Melbury Developments Ltd [2010] 21 ELR 64 said in relation to the burden of proof:

“This requires that the Complainant must first establish facts from which discrimination may be inferred…..All that is required is they be of sufficient significance to raise a presumption of discrimination.”  

In considering the allegation of age discrimination made, it is significant the first date of employment of the candidate offered the role of Inside Sales Representative is 2003. The Complainant is 38 years and other candidates shortlisted for Inside Sales Representative whose ages are known are a mix of ages 26 up to 34 years. The age difference between 34 years and 38 years is not significant and does not raise an inference of discrimination.

Although there is a lack of information on ages of all candidates shortlisted ahead of the Complainant, certain facts have been furnished. I find a prima facie case of discrimination has not been shown by the Complainant.

The Complainant believes he is better qualified that the candidate offered the role of Inside Sales Representative. However, my role is to consider if there is evidence that the selection process was tainted by discrimination not to consider the merits of the applications as stated by the High Court in Irish Ale Breweries Limited trading as Diageo v O’ Sullivan.

The Complainant also alleges discrimination by the Respondent due to his nationality in relation to access to employment pursuant to s6 of the Employment Equality Acts 1998-2015.

S6 of the Employment Equality Act 1998 defines discrimination on the race grounds as:

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)….

The Complainant alleges he was discriminated against in relation to the same roles. He alleges he has been discriminated against due to his nationality as an Irish naturalised Egyptian. He claims the Respondent is recruiting Egyptians and Africans who are resident in Egypt and Dubai, United Arab Emirates not Ireland.

The Respondent does not hold information on the nationalities of the candidates save where this is volunteered. The Respondent provided information regarding the residence of some of the candidates.

There were three offers made to candidates for the role of Inside Account Executive by the Respondent, one candidate resides in Ireland, one in the Ivory Coast, one in Egypt. Of nine candidates shortlisted three reside in Egypt, two in Ireland, one in the Ivory coast, one in Qatar, one in the United Arab Emirates and one in Jordan.

Two of the candidates offered the role of Inside Account Executive have certifications from the Respondent or companies associated with the Respondent. The two individuals reside in Egypt and the Ivory Coast respectively. The Complainant asserts there is a practice of the Respondent to recruit from Egypt and the United Arab Emirates from internal staff or staff of contractors which disadvantages him as an Irish candidate and relies on an email from 2017.

There was 1 offer made to a candidate for the role of Inside Sales Representative who resides in Ireland. Ten out of sixteen of the candidates shortlisted reside in Ireland. There were no details of residence for the additional 6 candidates furnished by the Respondent following the hearing.

There is a paucity of information available from the Respondent regarding nationality. However, from the information provided by the Respondent the allegations made by the Complainant in relation to the recruitment process for Inside Sales Representative and Inside Account Executive are not substantiated. No prima facie case of discrimination on the race ground has been established and the complaint is not upheld.

I find a prima facie case of age discrimination has not been shown by the Complainant and the complaint is not upheld.

No prima facie case of discrimination on the race or nationality ground has been established and the complaint is not upheld.

Prima facie case of discrimination, burden of proof