Complainant

Respondent

Parties

Hatem Mohamed

TikTok Technology Limited

Representatives

Self-represented

Emma Davey, BL

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-00038781-001

17/07/2020

In July 2020, the complainant applied for a job with the respondent.  He attended three interviews, but, at the end of the recruitment process, he was not offered a job.  He claims that this was because of his age.

On the form he submitted to the WRC, the complainant named “Tiktok” as the respondent.  At the opening of the hearing on February 25th 2022, on behalf of the respondent, Ms Davey stated that “Tiktok” was not involved in the interviews that the complainant attended.  He applied for a job with TikTok Technology Limited.  Ms Davey submitted that the complainant is statute-barred from adding or substituting TikTok Technology Limited as a party to these proceedings where no reasonable cause prevented him from correctly naming the respondent.  A preliminary issue therefore arises regarding the fact that, on his complaint form, the complainant has incorrectly named the respondent.   

Ms Davey referred to the Supreme Court decision in Sandy Lane Hotel Limited v Times Newspapers Limited[1], where the plaintiff was not permitted to amend the name of the defendant to “Sandy Lane Hotel Company Limited.”  In that decision, Kearns P relied on the “long established principle that a court will not add a defendant…if the action against that party is quite clearly statute barred.”

Ms Davey also cited the decision of the Labour Court in Travelodge Management Limited v Sylwia Wach[2] where it was held that a party could not be added or substituted in proceedings where the limitation period has expired against that party.  Finally, she referred to my decision in A Sales Assistant and a Retail Store[3], where I did not accede to the complainant’s request to amend the name of his employer.

The complainant submitted a complaint against “Tiktok,” alleging that, in July 2020, in the course of his application for a job as an ads service specialist, he was discriminated against because of his age.

Having been notified of this complaint on September 15th 2020, the respondent’s solicitors wrote to the WRC on October 19th and 22nd, seeking further details from the complainant.  There was no mention in that correspondence of any concern about the name of the respondent and it is apparent that the respondent, TikTok Technology Limited, is properly on notice of the complaint, has instructed a legal firm and has had an opportunity to prepare a defence to the claim of discrimination.  Despite this, because the respondent has been incorrectly named, I have been asked to dismiss the complaint. 

In my determination about whether to allow this complaint to proceed, I must give some consideration to the fact that the complainant has not named a wrong legal entity, but he has made an error in the naming of the respondent.  This problem was addressed by the Labour Court in its decision on Ballarat Clothing Limited and Ann Aziz in 2015[4].  Ms Aziz was not legally represented and, on the form she submitted to the former Equality Tribunal, she named two company directors as her employer, rather than the name of the company.  In its finding that the respondent suffered no prejudice by being incorrectly named, the Labour Court referred to the decision of the High Court in O’Higgins v University College Dublin & Another[5], where Mr Justice Hogan held that,

“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if indeed, error it be)…In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

It is my view that it would be unfair to the complainant to dismiss his complaint because he made an error in the naming of the respondent.  The error is a minor one, and it did not prevent the respondent from being aware that they were the subject of the complaint.  They have suffered no prejudice by being incorrectly named.

I find that the circumstances of the Travelodge case are not reflected in the complainant’s case because the Labour Court determined that the issue in Travelodge was not a formal or verbal error, but that the wrong respondent was impleaded.

In A Sales Assistant and a Retail Store, I reached my conclusions based on facts that are different to the facts under consideration here.  In that case, the complainant was legally represented and had previously issued a personal injuries action, where he went to some lengths to establish the name of his employer and did so correctly. 

The Sandy Lane Hotel judgement cited by Ms Davey was also referred to by Mr Justice Barrett in his decision in Capital Food Emporium (Holdings) v John Walsh[6].  The judge drew a distinction between the jurisprudence in Sandy Lane and the Capital Emporium case on the basis of the legal advice available to the parties, stating,

“Whereas in the within proceedings Ms Stewart is a so-called ‘ordinary’ person who was acting with the benefit of trade union assistance: she is not a sophisticated commercial group acting with the benefit of ‘blue chip’ legal and tax advice”.

The complainant is an ordinary person, he submitted his complaint without the benefit of legal advice and he represented himself at the hearing.

Based on the jurisprudence referred to, I am satisfied that no prejudice arises for the respondent by being incorrectly named on the complaint form.  I have decided to proceed with my enquiry into this complaint, because not to do so would be a disproportionate response to a technical error on the complaint form.

On July 13th 2020, having attended three interviews for a role as an Arabic-speaking ads service specialist with the respondent, the complainant was informed that he was unsuccessful.  On his complaint form he said that he was asked how he would handle working with a team leader in his twenties, “or something to that meaning.”  The complainant did not present a written submission in advance of or at the hearing.

Evidence of the Complainant

The complainant said that he can’t produce any evidence that he was asked this question.  He said that it was asked at the third interview in three different ways.  He said that he has enough experience for the job and he is well-qualified.  He said that the Egyptian community in Ireland is strong and he knows all the team leaders in the respondent’s company in Ireland and they are all young.  He said that TikTok needs to show that they have people over 40 working for them.

Cross-examining of the Complainant

Ms Davey reminded the complainant that he told us that he had no evidence to show that he was discriminated against.  He replied that the evidence “is the interview itself.”

Ms Davey said that it is was clear that the complainant very much wanted to work for the respondent, as he told Ms Xie, at the first interview, that he wanted to leave his current job with Neato Robotics.  The complainant agreed that he didn’t enjoy the job he was in, but he said that he didn’t leave, and that the company closed because of the Covid-19 pandemic.

Ms Davey referred to copies of three emails between the complainant and Ms Xie, which show that the complainant left his job before he received confirmation about the outcome of the interview process.  He said that his employer gave their employees notice, to give them a chance to find another job.

Ms Davey referred to the complainant’s statement in his email to Ms Xie on July 8th 2020, in which he told her that he had handed in his notice and that “It’s my mistake I know because I suppose to wait to the final results because now I am in bad situation (sic).”

The complainant said that he got the impression that he would be starting in the job in one or two weeks and that Ms Xie told him that the new recruits would need to start as soon as possible.

Ms Davey said that the complainant conceded in an email that it was his mistake and that now, in his evidence to the WRC, he was contradicting himself.

Ms Davey reminded the complainant that, after he received notification that he was not successful in his interviews for the ad services specialist, on October 7th 2020, January 27th, May 26th and September 5th 2021, he applied for other jobs with the respondent.  The complainant agreed, although he said that he couldn’t remember the exact dates.

Ms Davey suggested that it was strange, if he was claiming that he was discriminated against, that he continued to apply for more jobs with this employer.  The complainant replied that he had no problem with TikTok; he has a problem with the interviewer.

Ms Davey put it to the complainant that he was not asked about his age.  He disagreed and said that, at the final interview, he was asked about his age.  Ms Davey said that no one asked the complainant for his date of birth.  He replied, “they know my date of birth.”  At this point, in a disrespectful tone the complainant said to Ms Davey, “are you finished?”

Ms Davey continued, “no one knows how old you are.”  She said that nobody asked the complainant how he would work with a team leader in their twenties.  The complainant said that, at the third interview, Mr Khan told him that the team are younger than him, in their twenties.  Ms Davey replied that Mr Khan will give evidence that none of the team leaders are in their twenties.

Ms Davey referred to emails between the complainant and Ms Xie between July 7th and 10th 2020 in which she said that he was unprofessional and pushy.  The complainant disagreed that he behaved in this manner.  Ms Davey said that it was the complainant’s conduct in these emails that led to the respondent’s decision not to offer him a job.  The complainant replied, “you have confirmed that it was the emails that made them change their mind.”

In response to questions from me, the complainant said that the respondent ‘s managers know that he is over 40 because of his CV.  He said that he applied again for jobs where he would be reporting to different managers.  He said, “the whole of TikTok is not an issue,” but that, “in this team, they discriminate.”  He said that he knows the members of the ad services team. 

Summary of the Written Submission

Included in the respondent’s submission are documents detailing the training provided to hiring managers and HR personnel involved in interviewing candidates for open roles.  Close attention is given in the training to alerting interviewers to questions that could give rise to a presumption of bias or discrimination.  Interviewers are provided with a script of prepared questions.

Notes of the interview conducted by Ms Xie in the first interview, the “HR Screen Call” on July 1st were provided in the respondent’s book of documents.  Ms Xie noted that, the complainant was,

“Very friendly and fun in the beginning.  Very professional and logical during the whole call.  But when asked about his NP (notice period) and salary expectation, he turned a little bit annoyed.”

Ms Xie gave the complainant a score of 3 out of 4 and the next day, he was invited to a second interview with Ms Alexandra Vass.  Notes of that interview were also provided in the respondent’s book of documents.  She noted that the complainant was sitting in a car, which he apologised for.  Ms Vass noted that the complainant “seems to fit the job” and that his “attitude is ok.”  She also awarded him a score of 3.

The following day, July 3rd, the complainant attended a final interview with Mr Sohail Khan.  All three interviews were scheduled to be on Zoom.  Notes of the third interview were also provided and there is no reference to any question about reporting to younger team leaders.  Mr Khan listed the complainant’s attributes, which were that he appeared to be good and honest with attention to detail.  He was passionate about TikTok and he gave examples of how to work in challenging times and in difficult scenarios.  Mr Khan noted that the complainant was a bit slow in responding and that his lack of experience in content might be a challenge.  He also gave the complainant a score of 3.  Mr Khan’s notes show that he decided to hold the complainant’s resumé until the next person was interviewed. 

On July 8th, the complainant wrote to Ms Xie telling her that he had told his manager in Neato Robotics that he would be leaving.  In his email, he said, “It’s my mistake I know…”  In response to an email from Ms Xie in which she explained that the result of the interviews would take time, on July 9th, the complainant replied,

“…it’s my mistake because now I did confirm that I want to leave my job by asking my manager what is the earliest I can leave…will you please advise when I can get your final answer exactly, I need an exact date please?”

Ms Xie replied the following day.  She told the complainant that there were many candidates to be reviewed for the role and that the hiring manager would make a careful decision.  She asked him for his patience and understanding.  He replied, thanking her for her email, but stated,

“I am patience when I have things clear but wait without end it’s not normal as I believe you have a professional hiring process Tik Tok it’s not an small business (sic).”

On July 13th, Ms Xie wrote to the complainant to explain that he had not been selected because the manager “decided to move forward with another candidate who suits the best with our current business need.”

In a document submitted as an appendix to the respondent’s submission, Ms Davey included details of final notes of the candidates who were selected for the job of ad services specialist.  She said that two of the candidates were aged 40, one was 32 and two were 31.

Evidence of Mr Sohail Khan

Mr Sohail said that he is the based in Dublin and is the lead manager of the ad services specialists. He manages a team of around 80 specialists.  He has manged skilled operatives in teams of between 10 and 350. 

Ms Davey asked Mr Sohail about the “Diversity Recruiting and Hiring Strategy,” a copy of which was included with the respondent’s submission.  Mr Sohail said that this is about the requirement to build a diverse team in TikTok.  He said that this is one of the company’s core values and that it is very strictly followed.

Ms Davey referred to the statement under the heading of “Training and Selection” which refers to educating the workforce on unconscious bias and inclusion.  Mr Sohail said that diversity in the hiring process results in the company having unique perspectives.  He said that, when he joined the company, he was trained on the diversity strategy. 

With regard to the vacancy for an Arabic speaking ad services specialist, Mr Sohail said that he was attempting to fill seven vacancies.  In all, 11 candidates were interviewed and he was the final decision-maker.  He referred to his interview with the complainant on July 3rd.  He said that the interview was supposed to be on Zoom, but the complainant’s internet wasn’t working and he conducted the interview over the phone.  Mr Sohail went thought the questions he planned to ask the complainant.  He said that he gave the complainant time to settle into the interview and he made him feel comfortable.  He said that the complainant had a good attitude and was well-prepared and answered almost all the questions.  Mr Sohail said that the only thing that concerned him was that he was slow to respond, and that he took his time answering the questions.  Mr Sohail said that he never asked the complainant about his age, or about how he would feel about reporting to a team leader in their twenties.  He said that a question like this doesn’t bring any value to the job.  Mr Sohail said that, at the time of the interview, he hadn’t appointed a team leader. 

Mr Sohail said that, after the interview, he gave the complainant a score of 3.  Others who were appointed to the job got this score, and some got 3.5.

Mr Sohail said that he worked closely with Ms Xie to select the right candidates for the job.   He referred to an email from her on July 10th, in which she said,

“Since Hatem’s attitude and behaviour are really strange, pushy and shows absolutely no empathy for the hiring team’s workload when he asks us for feedback, I would suggest not moving forward with him if he’s not a very strong candidate in terms of competence.”

Mr Khan said that he replied to Ms Xie, saying that he agreed, and that they did not move forward with the complainant’s application.  He said that one of the critical requirements of the role is patience and that he “joined the dots” between this behaviour and his slowness in his response to questions at the interview.

Mr Sohail repeated that there was no team leader in place at the time of the complainant’s interview and that hiring for a team leader commences when the team is in place.

Cross-examining of Mr Khan by the Complainant

In response to a question from the complainant, Mr Khan said that currently, 80 people and four team leaders report to him.  He manages the European team that looks after Arabic countries, Europe, Eastern Europe and Russia.  He said, “at the time of your application, we had no team leaders.”  Mr Khan said that he joined the company in June 2020 and that his job was to start hiring people for the ad services team.

Conclusion of the Respondent’s Case

Ms Davey said that the respondent’s recruitment process is transparent and fair and that recruiters are trained in non-discriminatory selection techniques.  She referred to the standard list of questions to be asked at interviews.  She claimed that “not one iota” of discrimination took place regarding the complainant’s application for a job with the respondent.  She said that he has presented no evidence to show that there is a link between his age and the decision not to recruit him.  She said that notes of the three interviews were retained and they show that the respondent’s selection process was consistently applied.  She said that the successful candidates were from a mix of ages, gender and background.

Ms Davey said that the complainant prematurely handed in his notice and that his complaint is without merit.  She submitted that he was not selected because of his impatience with the recruitment team and his pushiness when he was looking for a result.  She said that he has not made out a case that discrimination occurred.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(f), the “the age ground” islisted as one of the nine discriminatory grounds.  The complainant alleges that he was discriminated on the age ground when, at an interview on July 3rd 2020, he was asked how he would handle reporting to a team leader in his twenties.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (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 effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he has been treated less favourably than a younger person.

The nature of these primary facts was clearly set out in the decision of the Labour Court in Arturs Valpeters v Melbury Development[7],which was cited by Ms Davey at the hearing.  Here, the onerous nature of the burden of proof is clearly set out:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Ms Davey also referred to the appeal at the Labour Court of Mary Margetts v Graham Anthony & Company Limited[8].  This was a complaint by Ms Margetts that she was discriminated against on the grounds of her marital status, her family status and her age; however, the point made by the Chairperson of the Court, Ms Jenkinson, is relevant here:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Primary Facts

Having considered his evidence, it is my view that the complainant’s assertion that he was asked how he would handle being managed by a team leader in his twenties has no basis in fact.  I am satisfied that this statement was not made.  I have reached this conclusion because of the robustness of the respondent’s recruitment process, which seeks to ensure that people from all nationalities, gender, age and language are recruited.  I am satisfied that, at the time he was being considered for the job of ad services specialist, a team leader had not been recruited.  I have taken account of the respondent’s submission that the successful candidates for the job were in their thirties and forties.  Finally, I am satisfied that the reason that the complainant was not recruited was because he was belligerent and disrespectful while he was waiting for the results of his final interview.

Conclusion

Having examined the primary facts set out at the hearing by the complainant, it is my view that, in line with the decisions of the Labour Court which were cited by Ms Davey, the complainant provided no credible evidence to show that, on the balance of probabilities, he was subjected to discrimination on the ground of his age, or on any ground.  For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

As I have concluded that the complainant has not established the primary facts which show that he was discriminated against on the ground of his age, I have decided that this complaint is not upheld.

Discrimination on the age ground