FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : VMWARE INTERNATIONAL UNLIMITED COMPANY - AND - ALISON MCDONNELL DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s).ADJ-00025773, CA-00032781-001 The factual matrix The Appellant commenced employment with the Respondent on 12thDecember 2018 as an indirect ‘backfill replacement’ for an employee who was absent on maternity leave. The Appellant confirmed at the hearing of the Court that the complaint before the Court related only to the period between 7thJune 2019 and 6th December 2019, which was the date on which she had made a complaint to the Workplace Relations Commission. She clarified that, during that period, she had not been provided with training and that she had not been short listed for the role of the Respondent’s Deal Management Team for which she had applied. She complained that the reason for the failure to provide training and to short list her for the Director role was her race and her ethnic origin and that such amounted to discrimination on the race ground. Summary submission and testimony of the Appellant The Appellant submitted that she was not provided with opportunities for training or development by the Respondent which, she submitted, is supportive of her claim that there was no investment in her as the Respondent organisation does not invest in nor promote ‘employees of colour’. She accepted that the Respondent had provided her with training on Health and Safety matters, GDPR, information technology security and other new starter matters. She did not receive training in the internal systems she was required to use to in order to perform her job including in the ECMS (an internal contract management system) and in EULA and perhaps also in SLA and ELA which are all mechanisms, systems or protocols for the conduct of the business of her role. She submitted that the reason she did not receive this training was her race and ethnic origin. She was one of very few persons on the Respondent’s site of her race or ethnic origin. She was not aware of any person of another race or ethnic origin who had received training she contended had been denied to her but submitted that a ‘hypothetical comparator’ of different racial or ethnic characteristics would have received such training. She gave evidence to the effect that she was not at any time denied training which she had sought and that during the cognisable period for the within complaint she has already found ‘work arounds’ which were very fast and suited her and so she no longer felt that training in ECMS, EULA, ELA or SLA would benefit her in her role. She submitted that she had met a manager, Ms O’C, in February 2019 in a café / restaurant and had requested further training but had heard nothing further from Ms O’C or the Respondent as a result. She did not follow up her request with Ms O’C at any time. She submitted that in June 2019 a position of Director of Deal Management became available in the Respondent employment. The Appellant applied for the role. Based on the job advertisement and comments from a manager at a 2019 ‘summit’ where she had said that “people are promoted not only because of their background but because of their ability to find answers to questions, no one will meet all the requirements of the role but the person will know who to direct questions to”she considered herself to be a person qualified for the role She submitted that her failure to be subsequently shortlisted for the position is not justified by reference to a lack of meeting specific requirements as, firstly, the representation of the Respondent vis a vis the comments of a manager at the 2019 ‘summit’ were that essential requirements were in fact not the core competencies by which “completion” was measured. She submitted that that the eight persons who were shortlisted from a cohort of 41 applicants did not meet all the “essential requirements”. She compared herself however to a hypothetical comparator because she did not have access to the qualifications or details of the experience of the shortlisted candidates. She submitted that there was a lack of transparency in the recruitment process wherein she was not shortlisted and asked the Court to consider the decision of an Adjudication Officer inMey v James Hospital [DEC-E2007 – 016]. In referring the Court toGalway City Partnership v O’Halloran EDA 077, the Appellant contended that criteria for selection were inconsistently applied by the Respondent as between persons who were shortlisted and the Appellant. In testimony to the Court the Appellant said that she was not aware of the racial or ethnic characteristics of the shortlisted candidates and said that, in the absence of knowledge of these matters, she contended that she was discriminated against on the race ground by comparison with a hypothetical comparator. She said that she possessed extensive language and legal skills and was consequently qualified for the role of Director of Deal management. She also possessed qualifications or was pursuing such qualifications in Human Resource management. She said that she had sought training from her manager in February 2019 in a café / restaurant meeting but had not been facilitated. She did not follow up that request subsequently. She said that, during the cognisable period for the within complaint, she felt she had put in place ‘work arounds’ which were so effective as to mean that she no longer needed training in ECMS, EULA, SLA or ELA. Summary submission and testimony on behalf of the Respondent The Respondent submitted that it had not discriminated against the Appellant in any way on the race or any other ground. She had been provided with identical training to that [provided to all of her colleagues in her operating unit and this training included starter training and a week-long programme which included comprehensive training in areas which the Appellant denied having received training including in the Respondent’s ECMS system. At the conclusion of the week’s training the Appellant and all other participants were encouraged to seek out the SME (subject matter expert) who had delivered the training at any time or to participate in a repeat training programme after a period of carrying out her role if desired. She never approached the SME or otherwise sought further training. The Respondent submitted that the Appellant may have discussed training issues informally with a manager in a café / restaurant in February 2019 but a subsequent e-mail between the two in March 2019 never referred to any issue where the Appellant felt she need the support of a training intervention to carry out her role. In any event the manager concerned had ceased to carry any responsibility in respect of the Appellant by June 2019. Insofar as the recruitment of a Director of Deal management was concerned, the Respondent submitted that the Appellant occupied a role with a salary of €40,000 whereas the Director role carried a salary of €140,000 approx. A move from the Appellant’s position to the level of Director would be a significant step upwards. The Respondent, in advertising for the role of Director, was seeking candidates with significant people management and team leadership experience. The Appellant did not demonstrate any such experience on her CV. The Respondent was seeking to recruit a person with significant leadership and management experience and the CV of the Appellant did not meet these criteria. The shortlisting exercise was carried out by a recruiting manager who had been briefed by the senior director that people management at a senior level was a requirement for the role. The recruiting manager gave evidence to the Court that he had shortlisted eight people for consideration for the role based on the CV’s of 41 candidates. Any candidate whose CV did not demonstrate significant people management experience was not short listed. The Appellant’s CV did not demonstrate any such experience. He said that he had no knowledge generally of the race or ethnic origin of the 41 candidates albeit he would have known the Appellant from the workplace generally. The Senior director responsible for the recruitment competition gave evidence that she specified to the recruiting manager that she required significant people management experience in a candidate for the role of Director of deal management and this was so because of her requirement for a person with the capacity to lead a team and manage people. She did not have a requirement for a candidate to hold language skills or legal skills and these characteristics were not sought in the advertisement or specified as essential or desirable. Ms A N gave evidence that she delivered detailed training to the Appellant and a range of other staff in the Respondent’s ECMS and other systems. She said that the Appellant attended the week-long training and that this was the training that was provided to all staff in the Appellant’s unit. No other training was provided to other staff that was not provided to the Appellant in ECMS, EULA, ELA or SLA. The law Discrimination is defined in s6 of the Act as follows: 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’) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), (b) that they are of different F15 civil status (in this Act referred to as “the F15 civil status ground”), (c) that one has family status and the other does not (in this Act referred to as “the family status ground”), (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”), (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”), (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”), (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), (i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”). The burden of proof Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: - “(1) 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.” The established test for deciding if the probative burden shifts by application of this subsection is that formulated by this Court in Southern Health Board v Mitchell [2001] E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court held: - “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 these 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”. The Court later elaborated on the application of that test in Determination EDA0821, Cork City Council v McCarthy and commented as follows: “The type or range of facts which may be relied upon by a complainant may 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 of 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. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.” In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.Discussion In the first instance it is for the Appellant to establish facts from which it could be inferred that discrimination on the race ground within the meaning of the Act has taken place. The Appellant has submitted that she was discriminated against arising from the failure of the Respondent to make available to her training which would assist her to perform her role. She has given evidence that she received only starter type training and that she managed to create ‘work arounds’ in relation to the performance of certain aspects of her role in the absence of the required training and which, in her view, were very fast and which suited her better. She submitted and gave evidence to the effect that she was not contending that particular training programmes had been delivered to other staff in the period from June to December 2019 which were denied to her. In evidence she stated that she did not believe that she was in fact discriminated against in terms of the provision of training during the cognisable period for the within complaint. The Appellant’s representative did later confirm that the Appellant continued to contend that she had been discriminated against on the race ground as originally asserted by her in the denial of training to her. The Respondent has submitted, and clear and cogent evidence has been given on its behalf to the effect that the Appellant was provided with comprehensive training identical to all other staff in her unit. The evidence on behalf of the Respondent was to the effect that the Appellant never sought additional training in areas of her role although an invitation to attend further such training was extended to her along with all other staff in her work area at the conclusion of the week-long training programme she did attend. The Appellant also complained that she had not been shortlisted for the role of Director of deal management. The recruiting manager and the senior Director gave clear and cogent evidence that it was a requirement of the role that a candidate possess significant people management experience. The advertisement for the role identified as essential requirements that, inter alia, a candidate demonstrate experience managing a diverse, decentralised team and leadership skills with business acumen. The recruiting manager gave evidence to the effect that any candidate who did not demonstrate significant experience of people management was not shortlisted by him. He gave clear and cogent evidence that the application form and CV provided by the Appellant did not demonstrate such experience to him. The Appellant has not contended that she possessed significant people management experience but has contended that at the material time she was pursuing a HR qualification. Conclusions The Court must be satisfied that the Appellant has established facts from which an inference of discrimination can be drawn. The Appellant has however, other than by making assertions to the effect that discrimination has occurred, offered no evidence to support her contention that her race and ethnic origin caused any disadvantage to her in terms of the provision of training. She accepts that she was not denied training at any time during the cognisable period for the within complaint but contends that a hypothetical comparator of a different race of ethnic origin would have been provided with training that was denied to her. She contended that, prior to the cognisable period for the within complaint she was denied training in certain areas. Under cross examination by the Respondent, she clarified that she could not recollect having received such training. The relevant manager for the Respondent however gave clear and cogent evidence that the particular training referred to by the Appellant had been comprehensively provided to her in early 2019 on a week-long training programme and that such training was the same as that provided to all colleagues of the Appellant in her business unit. The Appellant has offered no submission as to what training would have been provided to a hypothetical comparator that was not provided to her or provided any evidence to support her contention that she was discriminated against on the race ground in any such matter. It is not for the Court to substitute its view for the view of the Respondent in terms of the experience required of a Director of deal management. It is for the Court only to address the contention that the Respondent discriminated against the Appellant on the grounds specified in her complaint in the manner for which she contends. The senior Director of the Respondent has given clear and cogent evidence to the effect that the essential requirement of candidates for the role of Director of deal management was significant experience of people management. The manager who conducted the recruitment competition and who decided not to short list the Appellant also gave evidence that his instructions were that significant people management experience was required for the role. He stated in evidence that the Appellant gave no indication in her CV or application that she possessed such experience and that he had not shortlisted her specifically for this reason. The Court has been offered no cogent evidence or submission to support the Appellant’s contentions that the decision of the Respondent not to short list her for recruitment to the position of Director amounted to discrimination against her on the race ground or that the Respondent failed to provide training to her which would have been provided to a hypothetical comparator of a different race or ethnic background. Having regard therefore to the evidence and submissions of the parties, the Court concludes that the Appellant has failed to discharge the burden of proof which rests upon her to establish a prima facie case of discrimination contrary to the Act in relation to the events she set out to the Court and on which she has based her complaint. Decision The Court finds that no case has been made out by the Complainant from which an inference of discrimination by the Respondent against the Appellant on the Race ground can be drawn. The appeal fails and the decision of the Adjudication Officer is affirmed. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
