Complainant

Respondent

Parties

Narimene  Saad

Deeward Ltd

Representatives

Clerkin Lynch  Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00043489-001

09/04/2021

The Complainant is claiming that she was discriminated against contrary to the Employment Equality Act 1998 as amended on the race and religion grounds in relation to access to employment.

The Complainant said that she applied for the position of part time Administration Assistant at the Respondent’s tile shop which was advertised on Indeed. On Wednesday the 6th of April 2021 she said that she received a telephone call and was asked if she was available for interview on that day which she accepted. The interview was arranged 4 o clock. She said that she advised the Respondent over the phone that she wears a headscarf. She went to the Respondents premises in Ballymount where she met Mr. Ray Sood the Operations Manager who interviewed her for the position.

The complainant said that the minute Mr. Sood saw her, he looked at her from the top to the bottom. She said she believed that he did not expect someone wearing a head scarf. She said that he then sat down and looked at his computer and conducted the interview with his arms crossed. The first question he asked her was where she was from.  She told him she was from Germany and then he asked where she was originally from. She told him she was German, but originally from Algeria but that she never lived there. She said that this question in her opinion, should not be asked. She said that she is skilled and was there for interview for a job that was advertised.  She said that he looked into his computer for the second time and said ok.

The job advertised highlighted in bold that they are looking for someone covering the office during the weekend in Ballymount, which would suit her perfectly for childcare reasons.

The Operations Manager then told her the job was based in Rathcoole and not in Ballymount and asked her if that suited her and she agreed because she could drive to Rathcoole which is not that far.  He then went on to tell her that the job was a full-time post in Rathcoole. She pointed out that the job advertised was part-time at the weekends and she could not do a full-time job because of her childcare responsibilities during the week.

He said ok. He then told her they have someone working during the weekend and he will keep her CV. The Complainant said that Mr. Sood told her he knows what kind of people he wants and that she is “good and ‘’clean’’”.  She said that she did not understand what he meant by that. The interview concluded, and she left the office.

The Complainant that he did not ask her about her skills, neither did he interview her and ask her anything about her previous working experiences. He did not take any notes, and she believed that he was not interested in her work experience and skills. She said that she believes that the Respondent was not interested in hiring her for a front line position because she wears a headscarf. She submits that she was discriminated against on the race and religion grounds. 

Respondent’s Submission

The Respondent advertised for the position of Administrative Assistant on Indeed.com. The advertisement stated that the position was for ‘part-time hours covering weekend hours’ which were stated to be ‘Saturday 9.00 – 17.00 and Sunday ’13.00 – 17.00’. The advertisement also stated that the Job Type was ‘Full-time, Permanent” and the Schedule was “8 Hour Shift Monday to Friday”.

They Respondent stated that at the time of the advertisement, they had open positions for both weekday hours and weekend hours. Forty candidates applied for the position of which five candidates were shortlisted for interview. The interviews took place at the Respondent’s business premises at Ballymount and were conducted by Mr. Ray Sood, Operations Manager.

The Complainant applied for the position on 2 April 2021. and she was shortlisted and was invited for interview on 6 April 2021 at 4pm.

The Respondent generally conducts a two stage recruitment process. A first round interview is conducted on a relatively informal basis to establish if the candidate remains interested in the position, what their availability is in respect of hours and days they might be required to work and if they are required to give notice in their current employment. If the candidate remains interested in the role and is available for the hours and days required, then they are invited to a second round interview. This is a more formal and detailed interview and would discuss the candidates previous work experience, relevant skills and requirements for the role.

The Respondent operates an equal opportunities policy in its recruitment and interview process. Job descriptions are advertised in line with the equal opportunities policy. The Company’s approach to advertisements and interviews is inclusive, consistent and non-discriminatory so as to ensure that no job applicant or employee is discriminated on any of the protected grounds

Witness Evidence

Ray Sood Operations Manager

He said that the company has 70 employees and about half of them are non-Irish.  22 from Poland, 1 from Brazil, India, Italy, Romania and England, 5 Croatian and 2 Russian. He said he is the son of immigrants from India. He said that he is involved in all aspects of the business and he has been employing people and doing interviews for 20 years and as far as he is aware there never has been a complaint about his interview technique before. He said that the company often run advertisements and at the time they had a part-time vacancy in their Ballymount branch and a full-time role in Rathcoole. There were 2 advertisements running at the same time for these roles.

There were 40 applicants and following a review of the CVs submitted 5, including the Complainant, were called for interview. He said the selection is a two stage process, he normally conducts an informal interview first followed then by a more formal interview. He explained to the Complainant at the informal interview that the part-time role in Ballymount was no longer available, but he had a full-time role in Rathcoole. The Complainant was looking for part-time work and he asked her if he could keep her CV on file because he believed she was a very good candidate and a brilliant CV.

He said he cannot remember if he made a comment about the headscarf, but he asked the Complainant where she was from as he believed they had something in common. He said that he wouldn’t have asked it if he thought it would have made her feel uncomfortable.  In response to a question if he had asked other candidates this question he said that he does sometimes. He said that he had no employees who wears a headscarf.  He denied he made the “clean” comment to the Complainant during the interview.  He said that he always conducts interviews in a professional manner.

He said that the advertisement for the part-time role went up on the 2nd of April and he interviewed the successful candidate on the 5th of April and held the 2nd interview on the morning of the 6th of April and offered him the job. He said that the reason he offered the part-time job straight away to the successful candidate without interviewing all the candidates is that it is hard to hire good employees and half of the people he calls for interview do not turn up. The reason he called the Complainant for interview even though he had already filled the part-time role he thought she might be interested in the full-time role he had in Rathcoole.

He said that he did not discriminate against the Complainant on either the race or religion ground. 

 Legal Submission

Section 6(1) of the Employment Equality Act 1998 provides:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists,(ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned …”

 In relation to discrimination on the ground of race, s.6(2) provides:

“As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are– (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 Burden of Proof

 Article 19 of the Recast Equal Treatment Directive Directive 2006/54/EC, as incorporated into Irish law in the Employment Equality Act 1998, prescribes at section 85A the burden of proof which applies to claims of discrimination and requires the Complainant to establish in the first instance facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The Labour Court in Cork City Council v McCarthy EDA0821 applying the principles set out in Mitchell v Southern Health Board [2001] ELR 201 in relation to the burden of proof stated as follows:

“Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination in Mitchell v Southern Health Board [2001] ELR 201.

That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence.”

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour

Court stated:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."

In WRC case DEC – E2014-059 Ms B v Health Service Executive it was stated by the Equality Office in their conclusions as follows:

“In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent”

The Respondent’s solicitor submitted that the Complainant has failed to discharge the legal threshold of a prima facie case of discrimination by failing to adduce any evidence to substantiate the allegations made or prove the primary facts upon which she relies. The Complainant’s case is comprised of unsubstantiated allegations with no objective evidence.

Furthermore, and without prejudice to the above, the Complainant has also failed to show that the facts on which she purports to rely are sufficiently significant to raise an inference of discrimination and therefore has not established a prima facie case of discrimination. Without prejudice to that position, the Respondent denies that it discriminated against the Complainant as alleged or at all during the interview process and that all times it followed a fair and transparent recruitment process.

The Complainant is claiming that she was discriminated against on the Race and Religion grounds pursuant to Section 8 of the Employment Equality Act 1998 and contrary to that Act. She said that there was a discriminatory question asked at the interview about her nationality because she was wearing a headscarf. She submitted that the Respondent did not conduct a proper interview and told her the job was filled. The Respondent denies that the question was discriminatory, and submits the Complainant was not considered for the part-time position because a person had been appointed to that position before she did the interview and she was offered a full-time role which she was not interested in.

Employment Equality Act 1998 as amended:

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)

Section 6(2)(e) provides that as between any two persons, the discriminatory grounds are, inter alia:

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act, referred to as ‘‘the religion ground’’),

‘‘religious belief’’ includes religious background or outlook;

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

Section 8 provides:

 8(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

(4) A person who is an employer shall not, in relation to

employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.”

………..

(6) “Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It 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."

 In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

 The complainant was born in Algeria and came to Germany with her parents as a young child where she grew up and was educated before coming to Ireland nine years ago. She wears a headscarf. She has 2 young children and applied for part-time work with the Respondent as the hours on offer in the advertisement suited her.

 I note that the Complainant said she was asked by the Operations Manager where she was from and when she said Germany he pursued the matter and asked where she was originally from.  I note that the Operations Manager accepted during the course of his evidence that he asked the complainant where she was from, but he was unable to say if he had asked the same question of all the other candidates he interviewed that day.  I am of the view that asking the Complainant, who was wearing a headscarf, about her nationality at an interview raises an inference of discrimination in the circumstances.  I am satisfied that the Operations manager did not ask the Irish candidate and candidates of a different nationality to the Complainant, and who were not wearing a headscarf, about their nationality. The Respondent said the question was asked in the context of a friendly chat as he is the son of immigrants from India. I cannot accept that it was an appropriate question. I note in particular that he did not accept the Complainant’s original answer that she is from Germany and pursued the issue and this could convey an indication he did not employ people from certain countries. While that may not be the intention of the Respondent when asking the question, the Labour Court has held in the case of St James Hospital v   Dr. Eng EDA023 that there is no need to establish intention to discriminate.  The Labour Court stated: “The Court also fully accepts that the Hospital management acted at all times without discriminatory intent toward the complainant or any other employee. However motivation is not a decisive factor and the accepted bona-fides of the respondent is not an allowable defence ..”   Accordingly, I am satisfied that the Complainant has established a prima case of discrimination in that the interview question was discriminatory on the race ground.

The Complainant also claimed that she was discriminated against on the religion ground in relation to access to employment and submitted that the Respondent did not want to employ a person wearing a headscarf. She said that it was a front office job and the respondent did not want to employ her for this reason. She said she was not given a proper interview and was not asked about her skills or experience. The Respondent said that while he accepted the Complainant applied for the part-time position it was filled by the time he interviewed her, and he discussed the full-time position in Rathcoole. The Complainant was not in a position to work full-time and he asked her if he could keep her name on file for future roles.

The Complainant has produced no evidence to support her contention that she was discriminated against on the religion ground in relation to access to employment.  I note that the Labour Court in the case of Melbury, cited above, stated in relation to the type of facts required to discharge the evidential burden: All that is required is that they be of sufficient significance to raise a presumption of discrimination.However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

The Labour Court went on to say: Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.

Applying the above jurisprudence to the case herein, I am satisfied that the complainant has failed to provide any facts of sufficient significance to raise an inference of discrimination.

I accept the Respondent’s evidence that the part-time position was filled by another candidate he had interviewed earlier than the Complainant and it was for this reason alone he could not offer her the part-time position.

I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the religion ground in relation to access to employment. Therefore, I find that the complainant was not discriminated against on the religion ground.

I find that the Complainant has established a prima facie case of discriminatory treatment on the race ground in relation to the interview process.

I find that the Complainant has failed to establish a prima facie case of discriminatory treatment on the religion ground in relation to access to employment.

Redress

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination.  Section 82(4) provides:

“The maximum amount which may be ordered by the Director General

of the Workplace Relations Commissionby way of compensation under subsection

(1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date

of the reference of the case, or if it was earlier, the date of dismissal, an

amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the

complainant would have received at that date but for the act of discrimination

or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000.”

 As this is an access to employment case, the maximum award of redress I can make is €13,000. In   I believe an award of redress in the amount of €1,500 is appropriate redress in the circumstances. In accordance with Section 82 of the Act, I order the Respondent pay the Complainant €1,500 in compensation for the effects of the discriminatory treatment.

The award is redress for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

Employment Equality Act 1998 – Section 6(1) Discrimination grounds Religion and Race, Access to employment, discriminatory question at interview.