FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : MICROSOFT IRELAND (REPRESENTED BY OWEN KEANY B.L., INSTRUCTED BY EVERSHEDS SUTHERLAND) - AND - MR AMJAD SHAABAN (REPRESENTED BY INDEPENDENT WORKER’S UNION DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision no. ADJ-00023393. Dispute The Appellant alleges that he was discriminated against on grounds of race by the Respondent in a recruitment competition for a temporary acting position in May 2019. The position in question was Account Executive – Digital Sales Arabic. There were 102 candidates for the position. Of those 102 candidates, nine were shortlisted for interview on the basis of a selection process as a result of a keyword search. The Appellant was one of those nine shortlisted candidates. Following interview four candidates were successful in being selected as ‘hires’. This meant that the four selected candidates were deemed suitable for the role. The Appellant was one of those four candidates selected as ‘hires’. He was ranked number four of the candidates selected. The Appellant was ultimately not appointed to the role whereas the top three candidates were offered employment. The conduct of the hearing of the Court The Respondent was represented by a solicitor and barrister at the hearing as well as by a HR Manager of the Respondent. The Appellant was represented by a person who represented himself to the Court as an official of the Independent Workers Union, an equality activist and a person who had, to use his own word, ‘history’ with the Respondent. Complaints of discrimination on grounds of age were withdrawn by the Appellant at the outset of the hearing. The Court outlined in detail to both parties at the outset of its hearing the procedure it would follow in the hearing. The Court outlined that the Appellant would be invited to read his submission first followed by the Respondent. At that point the Appellant would be invited to make any comment he wished on the submission made by the Appellant and the Respondent would then be invited to do the same as regards the submission made by the Appellant. At that stage the Court would raise any questions it felt were appropriate in order to clarify whatever might be unclear or complete whatever might, in the view of the Court, appear incomplete. The Court further set out that because the Appellant alleged separate breaches of the Act in respect of three separate recruitment competitions the Court would follow the steps outlined separately and sequentially in respect of the three impugned recruitment competitions. Both parties confirmed their understanding of the procedure to be followed and confirmed to the Court before the within appeal was opened that they were satisfied to proceed in the manner outlined by the Court. The Appellant did not call any witnesses to give evidence at the hearing of the Court. The Respondent stated at the outset of the hearing that it may call a witness if required. In the event, neither party called witness evidence before the Court. The Court, as had been outlined to both parties before the appeal was opened, decided to hear the detailed submissions of both sides sequentially in respect of the three separate recruitment competitions which were each alleged to have been conducted in breach of the Act by the Respondent. When the procedure outlined was complete in respect of competition number 1 the Court would move to competition number 2 and repeat the exercise. Following completion of submissions and engagements in relation to the first competition the Court adjourned very briefly. Upon resumption, counsel on behalf of employer advised the Court of having experienced intimidation by the representative of the Appellant during the short adjournment. The Appellant’s representative denied that any intimidation had occurred. The Court noted the denial of the representative of the Appellant. The Court did not investigate the report received and had no statutory function to do so. The Court’s obligation is to conduct fair proceedings such that all parties are facilitated to state their case and to respond to the case made against them before the Court. Freedom to participate in fair proceedings is dependent on freedom from intimidation or any form of threat in so doing. The Court drew no conclusion as regards the allegation made by counsel for the Respondent but, as a measure of prudence and in the interest of ensuring fair procedure, advised both parties that it would adjourn the hearing to be resumed at a later date. At that point the representative of the Appellant informed the Court that complaints relating to competitions number 2 and number 3 were withdrawn. In those circumstances and on the basis that all matters associated with the first competition had been heard, the Court decided that the hearing should be closed at that point as completed rather than adjourned. The Appellant’s representative sought leave to make a closing statement at the closure of the hearing. That was permitted. The representative commenced his closing statement by making allegations against the employer in intemperate language. When the Court intervened to request that the Appellant’s representative desist from the use of such language the Appellant himself enquired of the Court as to whether it was a requirement that a closing statement be made on his behalf. The Court advised the Appellant that there was no such requirement. The Appellant then advised the Court that he did not wish that any closing statement be made on his behalf. Counsel for the Respondent informed the Court at that point that he was satisfied not to make a closing statement. The hearing concluded. Summary of the Appellant’s position with regard to Competition number 1 The Appellant submits that the recruitment competition for the position of account executive was both directly and indirectly discriminatory on grounds of his race. He says that the Respondent had a preference for candidates from Egypt and offered copies of e-mail correspondence between staff / managers of the Respondent dating from March 2017 (some 2 years before the recruitment competition complained of) in support of that contention. He submitted that the manager involved in that e-mail correspondence demonstrated a preference for staff whose origin was other than Sudanese for a particular role and expressed a preference for staff whose accent or cultural mores were the same as those in the region in which they were being appointed to. The Appellant submitted that while the manager concerned had no direct involvement in the impugned recruitment competition, she was a manager of a person who was so involved. He submitted that she would consequently have had an influence over the conduct of the impugned competition. He submitted that the Respondent responded to the statutory form EE.2 dishonestly. That form was served on the Respondent some months after the completion of the recruitment competition and the Respondent stated in the form that it had no knowledge of the race / national origin of the successful candidates in the impugned competition. The Appellant submitted that, at that point, the three successful candidates were working for the Respondent and consequently the Respondent must have known their race / nation of origin at the point of submission of the EE.2 form. The Appellant further submitted that a manager involved in the recruitment competition had previously worked with one of the successful candidates and thus must have known his race and nation of origin at the time of the impugned competition. The Appellant submitted that two of the three successful candidates were Egyptian. This demonstrated a preference for Egyptian persons in the submission of the Appellant. The Appellant submitted that the selection criterion in the impugned competition was set to favour people who have previously worked for the Respondent, especially in Egypt, Dubai or Africa and that was the sole reason he was not selected for appointment. In particular, the Respondent discriminated in favour pf persons with experience in selling or working with the Respondent’s products and that policy resulted in candidates of Syrian origin being indirectly discriminate against. This is so because the Respondent does not nor never did have a business operation in Syria. The Appellant submitted that one of the successful candidates happened to be based in Ireland but on the balance of probability was of an African nationality. The Appellant on the other hand is a Swedish citizen of Syrian origin and the Respondent had never operated in Syria. The Appellant submitted that the ‘hiring manager’ had stated at the interview at which the Appellant was successful “why should we hire you when you do not have Microsoft experience”. He also submitted that on a trip to Qatar a person he met reported to him that he had been invited to apply for a job with Microsoft due to his Microsoft experience. Finally, the Appellant submitted that he had a superior Curriculum Vitae to a named successful candidate. He submitted a document to the Court which he said was that person’s Linkedin public profile in support of that contention. The Appellant’s representative submitted that the named person was Egyptian and stated that he could say that because he, the Appellant’s representative, knows the person. Summary of the Respondent’s position with regard to competition number 1 The Respondent submitted that the Appellant had not established a prima facie case of discrimination. The Respondent denied any discrimination but set out what it submitted were relevant facts regarding the impugned recruitment process. It appears that the Appellant’s complaint is based entirely on an incorrect belief that the Respondent has pursued a policy of hiring only Egyptian nationals for Arabic roles within its digital sales division. The Appellant connects this assertion with his contention that the Respondent has pursued a policy of discriminating in favour of candidates who had previously worked with the Respondent or had experience of selling its products. On foot of this belief the Appellant claimed that he had been discriminated against in relation to competition number 1 both directly and indirectly. The Respondent submitted that at the date of hearing of the within appeal before the Workplace Relations Commission it employed approximately seven hundred and seven employees in its digital sales department. Of those who volunteered their nationality, the Respondent understood there to be twenty-nine persons who identified themselves as being of Egyptian nationality. The Respondent did not at any stage of the impugned recruitment process for an ‘Account Sales Executive – Digital Sales Arabic’ request or compile information relating to candidate nationality. Accordingly, the Respondent did not have access to such information during recruitment other than in cases where a candidate had chosen of their own accord to include their nationality details in their application. The race characteristic is not a matter considered by the Respondent in determining the success or otherwise of candidates applying for a role. In the event, the Appellant was one of only nine candidates successful in being shortlisted for interview from a candidate pool of 102 persons following the first phase of the recruitment competition. Of the nine persons interviewed, the Appellant was one of only four who was successful in being placed as a ‘hire’ as a result of the competition. In the Respondent employment, a successful candidate who is identified as ‘hire’ is a person deemed suitable for appointment subject only to the availability of a vacancy. The three candidates placed above the Appellant as ‘hires’ did not identify their nationality in their application forms. Each of the three was appointed to a role because a vacancy existed but the Appellant, in the absence of a fourth vacancy, was not. The Respondent submitted that the Appellant’s contention as regards an alleged policy of employing candidates with previous experience in dealing with and selling the Respondent products is unfounded. The Respondent submitted however that, whilst no such policy exists, it is perfectly legitimate for the Respondent to view positively and attach appropriate weight to a candidate’s level of qualification and experience, including his or her experience of working with or selling the Respondent’s products. The Appellant had at various stages of the within complaint and appeal attributed three versions of an alleged discriminatory statement to an interview Board member. In his complaint to the Workplace Relations Commission he had alleged that the member concerned had stated that the Appellant“would not be considered since there were other candidates with more experience of selling Microsoft products than”the Appellant. In his written statement dated October 2019 he had alleged that the member concerned had“made a point”that the Appellant does “not have Microsoft selling experience which can only be had(sic)for people with a Microsoft background and restricts successful applicant to a few countries”. In his written submission made as part of the within appeal the allegation was that the board member said, “why should we hire you when you do not have Microsoft experience?”. The Respondent submitted that the board member concerned had never made a statement of the nature variously described and attributed to him by the Appellant. Burden of Proof Section 85A(1) of the Act provides as follows in relation to the burden of proof which a Complainant under the Act must establish:
Conclusions of the Court In the instant case the Appellant contends that he was directly and indirectly discriminated against by the Respondent in the impugned recruitment competition. It is not in dispute that the Appellant was, from a pool of 102 candidates, one of only 4 candidates who were successful in being qualified as ‘hires’ following two phases of selection. It is alleged that two of the top three candidates were of Egyptian nationality. It is further alleged that a member of the recruitment interview Board knew one of the successful candidates and must have known that he was of Egyptian nationality. The Appellant submitted a statutory form EE.2 to the Respondent some months after making the within complaint. The form concerned sought information as regards the conduct of the impugned competition. The Court was not provided with a copy of the EE.2 form submitted to the Respondent and has no evidence as regards the precise information sought of the Respondent. The Appellant submitted that he sought information as to the nationality of successful candidates. The Respondent’s reply to the EE.2 request was provided to the Court. That reply set out that the nationality of the three successful candidates was unknown. The Appellant’s representative submitted that at the time the form EE.2 was submitted, because the three appointed candidates were then employees of the Respondent, the response on the form was untruthful. The Appellant’s representative asked the Court to draw inferences from this state of affairs. The Respondent submitted that it supplied information to the Appellant in response to the receipt of a request for information on Form EE.2. That request was made some months after completion of the recruitment competition. The information supplied was the information available to the Respondent during the recruitment competition and did not reflect its current state of knowledge at the time the EE.2 form was submitted. At the time the request for information was received, its state of knowledge may or may not have included the national origin of the successful candidates. The Respondent submitted that it does not possess, as a matter of practice, knowledge as regards the national origin of its employees albeit some employees provide that information of their own volition It was submitted that the form related to the conduct of the impugned recruitment competition and that the response given by the Respondent reasonably related to its state of knowledge at the time of that competition. The Court accepts the submission of the Respondent on this matter and draws no inference from events associated with the submission by the Appellant of form EE.2 to the Respondent which occurred sometime after the making of the within complaint. The Court notes the allegation of the Appellant that one of the interview board members knew the national origin of at least one successful candidate having worked with him previously. The Respondent made no submission on this aspect of the Appellant’s complaint. The Court has, in its view, been given no basis for drawing an inference of discrimination from the supposed state of knowledge of an interview board member as regards the national origin of a successful candidate at interview. The Court, in coming to this conclusion, takes account of the fact that the Appellant himself was a successful candidate at interview stage. The Appellant has made a complaint of direct discrimination on grounds of his national origin. The allegation of discrimination is supported by copies of e-mails between persons not associated with the impugned competition and dating from 2017 together with an assertion that one of the authors of such mails was able to influence the outcome of the impugned competition. The mails in question, which were submitted to the Court, appeared to refer to the issue of assignment of an employee of Sudanese origin for a role or position with the Respondent and an e-mail discussion between two persons in that context. The Court is not certain that both parties to the e-mail chain were managers albeit one of those persons was asserted by the Appellant to be so. The mails appeared to the Court to assess the employee as having scored 4 out of 10 in English proficiency, as having poor telephonic skills, no sales or pre-sales experience and not possessing Middle Eastern Arabic and consequently as being likely to struggle in the Egyptian, Saudi and Gulf teams. One of the participants in the e-mail conversation at one point asserted that “guidance given to me is that given accents, cultural mores, etc we should not look at Sudanese being appointed to the Gulf/Egypt/Saudi or even NEPA”. One of the two participants later stated that“we do need to have native speakers in each market/team”and sought confirmation that the employee under discussion had North African Arabic and not Middle Eastern / Egyptian”. The Respondent submitted that the e-mail chain submitted by the Appellant had a particular context in relation to a particular employee and could not be determined to be evidence of either a specific or general discrimination against a person of any national origin or in favour of another by comparison. The Appellant has submitted the e-mail chain in question to support his contention that a manager of the Respondent who participated in the e-mail conversation, although not a party to the impugned recruitment process, influenced that process and in particular the interview phase in favour of Egyptian candidates. The Appellant asserts that at least one and probably two of only three candidates placed above him as a result of the interview process were Egyptian. The Court, on the basis of the submission made by the Appellant, is unable to ascribe the meaning contended for by the Appellant to the e-mail chain submitted to the Court and is further unable to draw from its content any connection with the impugned interview process at issue as part of the within complaint. The Court is similarly unable to accept the assertions of the Appellant as evidence from which it could be inferred that a manager of the Respondent who was not involved in the impugned recruitment process sought to or did in fact influence the conduct of that process, including the interview phase, so as to produce a discriminatory outcome. The Court notes that the Appellant, who is not of Egyptian origin, was successful in the impugned interview process. The Appellant also submitted that a member of the interview board made comments which he alleged were discriminatory. The Respondent submitted that no such comments were made as alleged. The Appellant offered no other evidence to the Court to support his allegation that these disputed comments were made. The interview notes submitted to the Court do not make reference to such comments. The Court accepts that in circumstances such as this it is not uncommon that the only available evidence may be the recollection of the parties themselves. In those circumstances the Court must weigh up the conflicting evidence and set out its reason(s) for favouring one recollection over the other. Neither party tendered oral evidence on this or any other aspect of the factual matrix of the within complaint. The Court notes the Respondent’s assertion that the Appellant himself described the alleged comments differently on three occasions during the course of the engagements associated with the within proceedings. The Court also notes that the Appellant has not contested this assertion. It is significant in the Court’s view that the interview process concerned involved consideration of the candidature of nine individuals. Four candidates graduated from that interview process and five did not. The Appellant was one of the successful graduates from the interview process. No oral evidence having been tendered, the Court must reach a conclusion on the oral and written submissions of the parties. The Court has been given no evidential basis to conclude that a member of the interview board made the statement variously described by the Appellant or that any statement was made which could be inferred to be discriminatory in nature. The Court concludes that no inference of the occurrence of a discriminatory act by an interview board member can be drawn by the Court from the submissions and assertions of the Appellant. The Appellant asked the Court to find that his qualifications for the role being recruited for were superior to those of a person placed above him on the list of ‘hires’ decided upon by the recruitment competition. That person was asserted to be Egyptian and the Appellant based that assertion on the personal knowledge of his representative. The Court has no function in placing itself in the position of those carrying out an assessment of candidates for appointment to a role. In Director of Public Prosecutions and Robert Sheehan [EDA 0416] this Court described its function as follows:
The Court is satisfied that the Appellant has not established that the selection process conducted by the Respondent was unfair in any manner. It is significant, in the view of the Court, that the result of the impugned process was to place the Appellant in the top four of 102 applicants for the advertised post. The Appellant has made reference to e-mails unrelated to the impugned selection process in an effort to establish a fault in the process. In addition,he has asserted that a member of the interview Board made a comment which was discriminatory during the selection process. The Court, in all of the circumstances, concludes that the Appellant has not discharged the burden resting upon him to establish primary facts from which an inference of direct discrimination based on his national origin could be drawn. The Appellant has also contended that he was indirectly discriminated against on the basis of his national origin by the Respondent. In support of that contention the Appellant has submitted that the Respondent had a policy of giving preference in recruitment to persons with prior knowledge or experience of the Respondent’s products and that this policy had the effect of favouring persons of Egyptian nationality and disadvantaging person of Syrian origin. The Appellant has offered no statistical or objective evidence to support his assertion in this regard. He has contended that persons of Syrian origin were disadvantaged by this alleged policy on the basis that the Respondent had never operated in Syria. The Respondent denies that any policy as alleged existed or exists in the employment but contends that it is entitled to give weight to the relevant experience of persons being recruited for roles in selling its products. In essence, the Respondent has contended that, while it does not operate a policy of recruiting only persons with experience of selling its products, there are objective reasons for giving weight to such experience where it is held by a candidate for employment as a person selling its products. Indirect discrimination arises where an apparently neutral provision criterion or practice puts persons having a protected characteristic at a particular disadvantage. In this case, the Appellant is saying that an alleged policy of giving preference in recruitment to persons with prior knowledge or experience of the Respondent’s products places Syrian nationals at a particular disadvantage vis-�-vis Eqyptian nationals. Having regard to all of the submissions made on this matter the Court concludes that the Appellant has not discharged the burden resting upon him to establish primary facts from which an inference of indirect discrimination based on his national origin could be drawn. Determination The Court finds that no case has been made out by the Complainant from which an inference of discrimination on the Race ground can be drawn. The appeal fails and the decision of the Adjudication Officer is affirmed. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary. |
