Complainant

Respondent

Parties

Aidan  Barr

Tesco Ireland Limited trading as Tesco Superstore

Complainant

Respondent

Anonymised Parties

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Representatives

  In person

Niamh Ní Cheallaigh

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-00042813-001

03/03/2021

This complaint is racial discrimination on the basis that the Complainant is Irish.

On 26 February 2021 the Complainant completed an online job application through a recruitment agency for a job entitled Dotcom Personal Shopper with the Respondent. The job was advertised as being a job in Tesco in Bailieboro, Co. Cavan,

As part of this application he was asked four questions:

1.       Did he had UK bank details that he could provide

2.       Did he have a conviction of any criminal offences under the Offender Act 1974 or had any criminal prosecution pending.

3.       Did he have a right to work in the UK (Asylum and Immigration Act 1996)

4.       Was he was a student in England, Scotland or Northern Ireland.

He was very surprised at these questions given that the job was to be located in Bailieboro, Co. Cavan but answered the questions and sent the application to the Respondent via the recruiter.

Five minute later he received an automated reply from Tesco Career Centre confirming that Tesco had received his application but having carefully considered it, a decision had been made that he would not be moving forward in the selection process at that time.

The Complainant was extremely affronted by this. Clearly, despite what the email stated, absolutely no consideration had been given to his application and secondly, he believed that the reason his application was not being progressed was because of the replies that he gave to questions pertaining to UK residents. He felt that these questions were inappropriate given that the job advertised was local to him in in Tesco in Bailieboro, Co. Cavan.

His complaint is that the Respondent’s action, in refusing to progress his application, was an act of discrimination because the job criteria favoured UK applicants and excluded him – as an Irish person – from being considered any further in the selection process.

He immediately replied to the Tesco email stating his objection (he also sent a complaint to the recruiter) but did not receive a reply from either until after he had submitted the WRC complaint in March 2021.

Following issuing his WRC complaint on 3 March 2021 he received a letter dated 9 July 2021 from Mr. Paul Rooney, Store Manager in Tesco Bailieboro, who stated that the position had been advertised in error. That the position was a UK based position which was open to UK based applicants only. The Respondent apologised for the error and invited the Complainant to apply for other positions in Bailieboro, Co. Cavan.

The Complainant feels that he was discriminated against because he was Irish, because he could not meet the job criteria requiring him to be a UK resident.

The Respondent’s defence is that no act of discrimination has been proven by the Complainant and the complaint should fail because no prima facie case has been proven by the Complainant and or if a prima facie case had been proven that the action arose out of administrative error and not any act of discrimination.

The Respondent had no notice of the issue until the WRC complaint was received.

An advert for a job entitled Dotcom Personal Shopper was a UK based position and an error had occurred in the inputting of advert on the system. The Respondent accepts that the job was advertised as a job in Bailieboro, Co. Cavan.  The error occurred because the wrong code was used when the advert was being posted (a code starting with the letters CA (for UK based jobs) was used instead of GA (Ireland based jobs.)) The error occurred because positions within the UK were being advertised at the same time as positions in Ireland.

As soon as the WRC complaint was received the Respondent investigated the matter and the error was realised. No complaint email, as the Complainant alleges was received by the Respondent, or via the recruiter. However, this is not surprising given that the email that the Complainant sent was in response to an automated email and he would have received a notification at the time stating that it was an automated response and a no-reply email.

Following the realisation of the error, the Respondent wrote (by letter dated July 2021) to the Complainant explaining and apologising for the error. He was invited to apply for other positions in Tesco Bailieboro.

No discriminatory act occurred. The wrong advert had been posted. It was for a UK based job, not an Irish job. The reason that the Complainant’s application was not progressed was because he was not based in the UK for a job that required him to be UK based. The four questions that were asked were not questions to eliminate Irish applicants from the role but were posed to ensure that the applicant was UK based. The Complainant conceded at the Adjudication hearing that he had applied because it was a role that he thought he could do locally in Bailieboro and he also accepted that he would not have moved to the UK if he had known that the job required him to live in the UK.

Of the 116 employees in the Respondent’s Bailieboro branch, 90 employees are Irish. There is no evidence to support the Complainant’s belief that the Respondent discriminated on the basis of race. The Complainant did not dispute the explanation of error as provided by the Respondent.. The Comparator had not provided a comparator to evidence his assertion that discrimination had occurred.

This was an administrative error. The Complainant has not discharged the burden of proving a prima facie case and or the Respondent did not discriminate against the Complainant.

Prima Facie Test: The onus of proving facts from which it may be presumed that discrimination occurred, is for the Complainant to discharge.

I accept that the erroneous posting of the  adverts, indicating the job was based in Bailieboro when it were not,  led the Complainant to believe that (at the point when he was rejected from the recruitment process) that  declaring he had no UK bank account etc. (and it is accepted that this was the reason why the Respondent’s algorithm rejected his application) had the effect of eliminating him from  the  recruitment process of a job (that he believed was within Ireland) on the basis that he was not a UK resident.

While the Respondent accepts that the Complainant was discriminated against in that he was excluded from a recruitment process, he has not discharged the burden to show that this exclusion occurred on the basis of prohibited grounds.  His exclusion occurred not for the reasons that the Complainant thought it was.  It occurred because the job was a UK based job for which the Respondent required UK based applicants. This was never a Bailieboro job, although the Respondent concedes that the error in posting the advert misled the Complainant, and possibly others, into thinking that it was.

In my view, had the Complainant written to the Respondent - not to the Respondent’s automated email – but to the Respondent head office or Bailieboro email address (if one exists) it is likely that this matter would have been explained and resolved immediately and while  I accept that the Complainant asserts that he also sent a complaint to the recruiter, evidence to support this was not provided at the Adjudication and I therefore cannot consider it. I should state that the Complainant is not obliged – unlike other equality acts - to put the Respondent on notice of an equality complaint as a condition-precedent to bringing a complaint before the WRC. I raise this only to suggest, that had this exercise been done, the error might have been revealed more quickly than July 2021.

The statutory test that I must apply pursuant to section 85 A of the Employment Equality Acts 1998 – 2015 is has the Complainant proven facts from which discrimination may be inferred.

In this case, there is no real conflict in evidence. The Complainant does not appear to dispute that an error occurred although he did not know this until after he issued the WRC complaint. His complaint is - at the time that he received the Respondent’s automated response – he believed he was being discriminated against for reason of race because he was not a UK resident, even though the job was in Ireland.

But the uncontested fact is that the job was not in Ireland and was never intended to be in Ireland. Having considered all the evidence, I am satisfied that this position was never available to the Complainant, or indeed any applicant who was not a UK resident. This is because the Respondent needed the Dotcom Personal Shopper position to be based in UK, having access to UK stores and products within its UK stores.

Therefore, it cannot be asserted that the reason that the Complainant was not considered for the post, was on grounds of nationality because the job in Ireland, that he believed he was applying for, did in fact not exist. The Complainant is unable to provide evidence that he received less favourable treatment because he was not considered for job because there was, in fact, no such job.

While I understand why the Complainant was frustrated when an apparently Irish based job required him to meet criteria based on UK residence, this was in fact not the case. There was no Irish role in respect of which the Complainant could assert that he was excluded from on the basis of his nationality. The Complainant’s evidence was clear, he thought that he was applying for a local job in Bailieboro, Co. Cavan and when he applied for the post he did not think he would have to move to the UK for work, nor would he have been he interested in doing this.

For the above reasons I am satisfied that the Complainant has not discharged the burden of proof that is upon him to prove facts upon which an act of prohibited discrimination may be presumed. I am satisfied that no prima facie case of discrimination has been made out.

I find this complaint to be not well founded.

By way of observation, this Adjudication raises an unusual circumstance, but one that is more than likely going to increase in the future. This is that the alleged act of discrimination is an automated response. It is not an individual action taken by a person in the employment of the employer, but rather it is a communication, generated by an algorithm which issued to (presumably) a number of applicants. Automated responses rely on the accuracy of input data. I respectfully suggest to the Respondent that appropriate scrutiny be paid to the accuracy of such data otherwise the risk of exposure to a wider range and greater number of employment rights complaints is likely to increase.

This complaint is not well founded

Race discrimination – recruitment – alleged act of discrimination is an automated email