Complainant

Respondent

Anonymised Parties

A Complainant 

A Respondent 

Representatives

 Union 

 Represented 

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-00032775-001

05/12/2019

The Complainant was employed by the Respondent as an Inside Sales Representative from 15th April 2019 until his employment was terminated by the Respondent on 7th October 2019.   submitted a complaint under the Employment Equality Act, 1998 alleging unfair dismissal due to discrimination on the grounds of age.

The Respondent is an electrical wholesaler with branches almost nationwide and is a wholly owned subsidiary of a multinational company with more than 31,000 employees worldwide.  The Respondent denied the allegations and contended that the dismissal was due to poor performance, following a fair probationary process.

The Complainant submitted that he was employed by the Respondent on 15th April 2019 as an Inside Sales representative and that at the same time another named individual was also hired into the Sales Department.  This individual was confirmed by the Complainant as the named comparator for the purpose of this complaint and I will refer to him hereinafter as the Comparator for the purpose of anonymity.  The Complainant submitted that the only material difference between him and the Comparator was an age difference of approximately 30 years.  However, he submitted that the Comparator was given approximately €400,00 of mature contracts to manage, whereas he was not.   

The Complainant submitted that after a probation meeting held on 19th September 2019, he was issued with a dismissal letter which cited disappointing sales figures and new accounts generated as the reason for his dismissal.  The Complainant submitted that the job title did not have a condition attached detailing certain sales targets to be met, nor was this referred to in his contract of employment. 

The Complainant submitted that he lodged an appeal of that decision on 22nd September 2019, the outcome of which was to uphold the decision to dismiss.  He submitted that this decision was notified to him by letter of 7the October 2019. 

The Complainant submitted a copy of the letter of termination, a copy of his contract of employment, a copy of the league table of sales figures and copies of the correspondences relating to the appeal, by way of supporting documentation.

The Complainant concluded in his submission that although he had less than 12 months continuous service he had cover of legislation as he was treated less favourably on the grounds of age and that in a hypothetical situation where the mature contracts were split on an equal basis “a fair and equal competition based on sales alone would have existed.” In these circumstances he submitted that the decision to allocate existing sales contacts to one new employee but not to another, when the only material difference between both is age, in a situation whereby the dismissal was based on a league table of such sales, cannot be objectively and reasonably justified, thus rendering his dismissal unfair on age grounds.

The Respondent confirmed that the Complainant commenced employment with them on 15th April 2019 as an Inside Sales Representative.  The Respondent submitted that the Complainant was hired specifically for a role based on his thirty plus years of experience in the electrical and engineering industry, “to drive new business and leverage on his strong reputation and large contract base.”  The Respondent also submitted that this decision was based on the Complainants’ CV and subsequent interview.  The Respondent submission confirmed that at the same time another employee was hired as an Inside Sales representative sealing with a specific client base and that the person identified was hired for that role as they had an existing relationship with those clients.  The Respondent submitted that this person was the comparator identified by the Complainant.

The Respondent further submitted that the Complainant was placed on a 6-month probationary period and that regular meetings were held with the Complainant throughout that period, with meetings taking place at 3 months, 4 months and 5 months.  The Respondent set out that at the 3-month probationary review meeting which took place in July 2019 the Regional Manager identified to the Complainant that he was not bringing in the required amount of business and that he needed to engage with other team members.  The Respondent submitted that at that meeting the Complainant advised that he was finding the system confusing and so it was agreed that further training on this would be provided. A second meeting was scheduled for mid-August and the required training was provided.

The Respondent submitted that at the second meeting, which took place in August 2019, the Respondent identified to the Complainant that there was no improvement in his performance, especially in relation to sales.  The Respondent also submitted that at that meeting the Complainant raised the issue that if he was given more established accounts his sales figures would increase and that as a result, the Complainant was given some additional existing accounts for holiday cover to see how he would manage those.

  The Respondent submitted that the Complainant was invited to a third probationary review meeting in September 2019 and that he was advised in the letter of invitation to that meeting of the risk that the meeting had the potential to either extend his probation or terminate his employment.  The Respondent further submitted that at the probationary review meeting 3 areas of concern were put to the Complainant as follows:

·       That the number of dockets and sales were lower than expected,

·       That engagement with team members was poor

·       That the repetition of the same questions, given his level of experience and industry knowledge was of concern

The Respondent outlined in his submission that the Complainant raised the issue that he felt he had not been given existing accounts and raised concern that the named comparator was given existing accounts.  The Respondent noted that the Complainant had been given existing accounts for holiday cover.  The Respondent submitted that the Complainant was advised that the colleague had been hired on the basis that they had worked with these clients in their previous role and that continuity of the client relationship was crucial to the success of the business.

The Respondent further outlined that an outcome of probation letter was issued to the Complainant confirming the termination of employment, stating the reason for that decision and outlining the process for an appeal of that decision.  The Respondent submitted that the Complainant submitted an appeal dated 22nd September and that as part of his appeal letter he outlined his grounds for appeal that he had been treated less favourably based on his age and that the comparator had received “mature and well-established sales contracts”.  The Respondent submitted that the Complainant also stated that had he “been given similar well established and mature sales contracts my sales figures would reflect my colleagues”.  The Respondent drew attention to the earlier statement of the Complainant in that same letter where he stated that “I managed some of these contracts for a number of weeks and there were no issues with my performance.”

The Respondent submitted that the appeal meeting took place on 4th October 2019, that the Complainant was accompanied by his trade union official, that the grounds for the appeal were heard, and that ultimately, the outcome of that appeal was issued to the Complainant on 7th October 2019.  The Respondent confirmed that the appeal upheld the original decision to terminate employment but that it also clarified in relation to the age discrimination allegation that the company employed people of all ages and that the decision to give the existing customers to his colleague was that it “made business sense for him to work with these customers” and that it was purely a commercial decision based on the fact that the other colleague had a pre-existing relationship with these customers.

The Respondent submitted copies of the employment contract, the Complainants’ CV, 3-month probationary review form, probationary review email of 21 August 2019, invitation to probationary meeting September 2019, minutes of probationary meeting 18 September 2019, outcome of probation letter of 19 August 2019, appeal letter of 22 September 2019, invitation to appeal hearing letter of 1 October 2019, and outcome of appeal letter of 7 October, by way of supporting documentation.

The Respondent submitted argument that a Complainant is required to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited and set out case law to support this position. The Respondent submitted that it is only when the 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 Respondent acknowledged in the submission that the Complainant had established that there was an age difference between him and the comparator, but the Respondent contended that the Complainant had failed entirely in proving that he was treated less favourably than his comparator. The Respondent denied the allegation of discrimination on the grounds of age in its’ entirety and further submitted that the Complainant was hired based on his long experience in the industry and his extensive network of contact to increase new business.  The Respondent pointed out that the Complainant failed to make any improvement in his performance for the entire duration of his employment despite receiving additional training on the system and being given a set of established accounts when this was raised at the second probationary meeting. The Respondent also submitted that while the comparator was given a set of existing clients this was because he had already worked with those clients and that this was a commercial decision based on the Respondent’s ethos that successful client management is crucial to the success of the business.  Finally, the Respondent submitted that the company operates a robust probationary process that is fair and transparent, that in 2019, 6 employees had their employment terminated during probation and that at the time they were aged 22, 23, 25, 33, 35 and 61 respectively. The Respondent also advised that in 2018 4 employees had their employment terminated while on probation and that their ages at the time were 53, 40, 31 and 27.

In conclusion the Respondent submitted that as the Complainant had not provided facts from which a prima facie case of discrimination could be established, that there was no case to answer by the Respondent and accordingly the case should be dismissed.

The Evidence:

At the hearing, in addition to confirming the details provided in his submission the Complainant clarified that the named comparator was more than thirty years his junior and that they had both commenced in employment, as Inside Sales Representatives, in or around the same time.  He alleged that the comparator was given existing well-established contracts to manage, to the value of approximately €400K, while he was not given any established contracts. He provided a copy of a league table which showed that his year-to-date sales figures were €87, 000, while the comparator had a sales figure of €448,565 for the same period.  He contended that this placed him at a disadvantage to his colleague from the outset and that ultimately, he was dismissed because of those low sales figures.  He further contended that, had he received an equal share of those contracts from the outset, then his sales figures would have been the same or similar to his colleagues. He also stated that he was prohibited from taking credit card details over the phone and that, consequently, he did not receive recognition for sales achieved in this way.

In addition to confirming the details of the company submission the Respondent clarified that the established contracts were given to the comparator because he had a previous relationship with those clients, that it was a commercial decision based on the company’s ethos that successful client management is crucial to the success of their business. The Respondent also clarified that the Complainant had been given mature contracts after he raised this as an issue during the second probationary review meeting.  The Respondent further clarified that it was company policy not to take credit card details over the phone, that when the customer would attend their premises to collect goods, they would present their card in person.

The Complainant did not agree that this was the case and advised that he “knew for a fact that cards were taken over the phone” by others and that he was disadvantaged by not having these sales recorded to him. He clarified that he did not get recognition for cash sales.  In response to questions from the Adjudication Officer the Complainant confirmed that he did not know the value of the difference involved in these sales but that it would have made some difference.  The Respondent advised that it could be assessed from the number of dockets produced each day and that the value of those dockets was between €300 and €500.

In relation to the Respondent position that the Complainant had been assigned mature contracts after the second probationary review meeting, the Complainant accepted that this had occurred.  However, the Complainant pointed out that he had only been assigned two such contracts; one for a week and the second one for a two-week period.  He stated that it had been very short-term and that building relationships takes longer than the time allocated.  Therefore, he stated that this temporary re-allocation of a small number of contracts had little impact on his overall sales figures.  The Respondent did not dispute the details of these contracts, nor the timeline during which they were re-allocated to the Complainant.  The Respondent did, however, re-iterate that the mature contracts had been assigned to the comparator, not because of his age, but because he had a previous relationship with the clients involved and because he was employed as a direct replacement for the previous sales representative who had managed those contracts.  The Respondent pointed out that the Complainant had been employed for his considerable experience and industry contacts with the purpose of generating new business.

In the company submission the Respondent referred to a number of examples of case law and these were opened at the hearing.  Essentially the matters related to the requirement on a Complainant, in the first instance, to present facts “from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.” The respondent cited, among other cases, the case of Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201 where the Labour Court stated that “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 those 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.”  Based on these examples the Respondent proposed that the Complainant had “failed entirely in proving that he was treated less favourably than his comparator” and so submitted that the Complainant had not provided facts from which a prima facie case of discrimination can be established.

In considering this complaint I reviewed all submissions and appendices, provided at the hearing, as well as all evidence given by the parties at the hearing.  I reviewed case law presented and considered other case law relevant to the matters in question.  In particular I noted the Labour Court decision of Hallinan v Moy Valley Resources Dec-S2008-025 which held that with regard to establishing the facts to meet burden of proof that the following must be established:

(a)   The complainant must establish that he or she is covered by the protected ground;

(b)   Establish the specific treatment has allegedly taken place

(c)    The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

When I examined this matter in the light of the above I noted that the Complainant had demonstrated that he was covered by the protected ground of age, he demonstrated that he is some 30 years older than the named comparator and this fact was not in dispute between the parties.  I noted also that, in accordance with (b) above, he demonstrated that the named comparator was given approximately €400k worth of mature contracts to manage when he commenced employment, while he was not given any.  This fact was also not in dispute between the parties.  Finally, I noted that this treatment was less favourable to the Complainant than that which applied to his younger named comparator.

I also noted the case of Cork City Council v McCarthy EDA0821 where the Labour Court held that the claimant must be able to establish primary facts on which he or she relies but also that they are of sufficient significance to raise an inference of discrimination.   In considering this aspect of the case before me I noted that the named comparator was given a set of established contracts to the value of €400K, while the Complainant was not given any.  An examination of the league table of sales provided by the Complainant, and which was relied upon by the Respondent in assessing the performance of the Complainant showed, that at the end of a 6-month (approx.) period of employment showed that the Comparator had achieved sales of €448,565 while the Complainant had achieved sales during the same period of €87,040.  It is clear from this evidence that the difference of receiving a starting position of €400K was significant.  Based on the foregoing I find that the Complainant has established a prima facie case of discrimination on the grounds of age.

The final matter, therefore which I must decide is whether or not the events described by the Complainant and his subsequent dismissal constituted discriminatory dismissal on the grounds of age.  In considering this question I took account of the Complainant’s position that his named comparator was given €400K of mature contracts when he commenced employment, while the Complainant was not given any and his position that ultimately the resulting sales figures of €448K vs €87K resulted in the termination of his employment for what the Respondent described as “disappointing” sales figures and new accounts generated.

I also took account of the position of the Respondent that mature accounts were given to the Complainant when this matter was raised by him at the second probationary review meeting and of the Respondents’ overarching position that the Complainant was managed through a fair and robust probationary process, that the decision to employ the Respondent was to drive new business based on his extensive experience in the sector and that this was a business decision.  It was also a business decision to provide the named Comparator with the mature contracts and this was based on the fact that he had a previous established relationship with those clients. I noted the Respondent position that, despite concerns being brought to his attention as part of the probationary process, the Complainant, not only failed to leverage on his previous contacts but also failed to secure new business from his contacts.

The Respondents’ position that a sales representative needs to demonstrate a level of performance in relation to the generation of business is one that is self-evident.  However, I was persuaded by the evidence of the Complainant that when the issue of an unfair advantage was raised by him at the second probationary review meeting he was given only two mature contracts, that these were assigned for mere weeks and that this wasn’t sufficient time to establish a successful working relationship with those clients.  I was also persuaded by the evidence derived from the league table that clearly shows that if even 50% of the mature contracts had been assigned to the Complainant his performance would have exceeded that of his younger named comparator.

I noted the Respondent explanation that the decision to assign those contracts to the comparator was a business decision only and was not based on age.  I noted that in making the connection between the alleged less favourable treatment and the protected ground, the Workplace Relations Commission and the labour Court have previously been clear in expressing the view that there is no need to establish intention, subjective or otherwise, on the part of the alleged perpetrator to discriminate.  In the case of St. James’s Hospital v Eng EDA023 although the Labour Court had accepted that the employer had acted “without discriminatory intent toward the complainant” it was unprepared to accept that “motivation is not a decisive factor and the accepted bona fides of the respondent is not an allowable defence.”  The Court went on to state that “Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware.”

In this case it is clear to me that of two employees who commenced employment in the same role at the same time one was given a clear advantage of having mature contracts assigned and the other was not.  What differentiated the two employees was their age.  It is clear from the evidence presented by the Respondent that there was an assumption that the older, more experience employee would be able to self-generate all his own business and this turned out not to be the case.  The impact of that original distribution of mature contracts was that the named comparator was ranked 9th out of 16 sales representatives for the period used to review performance, while the Complainant was ranked 15th out of 16.  If half of those mature contracts had been assigned to the Complainant, then the comparator would have been ranked 13th out of 16 and the Complainant would have been ranked 12th out of 16.

Based on the above evidence I find that the Complainant was discriminated against on the grounds of age.

I have found that the Complainant was discriminated against on the grounds of age and so it is my decision to award the Complainant the sum of €17,500 as compensation for the discrimination.

Age discrimination,