Complainant

Respondent

Parties

Philip  Mc Grath

Aldi Stores (Ireland) Limited

 Complainant

Respondent

Representatives

  Self-represented

 Vincent & Beatty LLP. Mr Frank Crean, B.L.

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-00041988-001

15/01/2021

The complainant submits that he was discriminated against on age grounds in terms of section 6 (2)(f) and contrary to section 8 of the Employment Equality Acts (The Acts) when the respondent failed to appoint him to the position of store assistant on 3 November 2020.

The last act of discrimination occurred on 3 November 2020.

The complainant submitted his complaint to the WRC on 15 January2021.

Witness 1; the complainant gave evidence under affirmation.

He applied for the job of store assistant with the respondent in good faith.

 The complainant submits that the respondent’s refusal to appoint him the position of store assistant in one of their stores is attributable to his age and nothing else. He was capable, lived near the store and had passed the first interview.

He had an initial group interview and was then called for a second, individual interview.

The Area Manager who interviewed him asked him his age. He asked him very probing questions designed to reveal his age. The complainant is 45 years of age.

He sought feedback from the respondent. In the feedback which he received very belatedly from the respondent. They claimed that he was dismissed from his previous job but that is not correct. He was laid off due to the Pandemic. This illustrates the faulty nature of the Area Manager’s recall of the interview.

Cross Examination of the complainant.

The complainant confirmed that he had never worked in retail previously. He confirmed that the Area Manager told the candidates about the job at the group stage, what was expected, targets etc and the 13-week training period. He recalls the Area Manager advising all 5 candidates that the job was physically demanding. He confirmed that he had told the respondent he had held a senior role in the hospitality industry as the manager of a whiskey bar, and was passionate about his previous job, which only ended because of the Pandemic.

He confirmed that when asked if he was up for the challenge of a job in a new industry, he replied that he did not see it as a challenge. He confirmed that the Area Manager told him at interview that he himself had come to the respondent at age 35 after 14 years in another industry. He denies that he volunteered his age. He does not dispute that he and the Area Manager are of a similar age. He stated that he did not think it was appropriate for age to be mentioned at the interview. The questioning on his work history was designed to reveal his age. He asked the complainant about his teenage work experience. The complainant stated that he did not think it was reasonable or professional of the interviewer to conclude that he was a flight risk –that he would go back to his previous industry when it would reopen after Covid -19 had subsided.

The respondent’s decision not to appoint him, coming only 24 hours after he had passed the situational judgement element of the interview, the group stage, shows that their consideration of his candidacy was inadequate.

Though he requested feedback from the respondent, he had to wait from November 2020 to January 2021. He accepts that the Area Manager delivered the feedback to the relevant section of the respondent in the UK and that they did not send it on to him.

The respondent’s follow up to his enquiries was only posturing. The respondent only replied after he had submitted a complaint to the WRC.

He asks the adjudicator to uphold his complaint.

The respondent denies that the decision not to appoint the complainant to the position of store assistant constitutes discrimination on the grounds of age. The respondent made a dispassionate, professional decision based on the abilities of the candidates presented at interview.

Witness 2: the Area Manager gave evidence under affirmation.

The witness interviewed the complainant for the position of store assistant on 3 November 2020.

The witness joined the respondent in 2014. He manages 100 employees in different stores in Wexford, Carlow, Laois and Meath. His job entails recruitment on one day a week. He has recruited about 100 staff since he joined the respondent,

The witness has done extensive training in Equality Legislation and best practice recruitment procedures. He has also done 6 months shadowing experienced managers in charge of training. He has received training in unconscious bias and prejudice. He has signed and is bound by the respondent’s codes of compliance with Equal Opportunities and Prevention of Discrimination.

He advertised for 4 positions in September 2020. He received 20-30 applications. He invited 8 to interview. Four attended on the 3/11/2020. He explained what the job entailed, the rates of pay, the training programme. He recalls that the complainant asked him about targets.  After the group interview he did the individual interviews with the candidates. He asked them all about their past experience. He asked the complainant what interested him about the job. The complainant spoke about his experience as a manager of a whiskey bar. He put the same questions to all interviewees.

He did not ask the complainant his age but to put him at ease about moving to a different industry, he did tell him that he had come to retail after 14 years in another industry and at the age of 35. He said to the complainant, “I am probably older than you”. The complainant volunteered his age. He never asked this candidate or any candidates their ages. Age was not relevant to his decision.

He did not offer him the position as there were better candidates on the day. His passion and enthusiasm for his previous job was evident to the witness. But he must think long term because the initial investment in training of employees dictates that they employ persons who will be there for the long haul and not biding their time until they can return to their preferred job.

The witness received the complainant’s email on the 6 November seeking feedback. He supplied feedback to the recruitment department in the UK on the 8 November. He apologises for stating that the complainant’s remarks about age were laughable; that was not appropriate. He understood that his response would be sent on by the relevant personnel to the complainant.

On 15 January, he discovered that his response had not been sent to the complainant. He responded within an hour. He regrets that the complainant did not receive a response sooner.

Cross examination of the witness.

He accepts that there was no internal investigation into the complainant’s complaint or how it was ignored.

The witness stated that he vaguely recalls the complainant expressing an interest in returning to college.

The witness confirmed that of the approximately 200 employees recruited by him, 10% were over 45.  To the question as to why the witness had raised his own age, he stated that it was to make him comfortable about changing industries after having worked for a long period in a different industry.

The witness accepts that the complainant had not been dismissed in his previous job.

Concerning the other candidates, they had more retail experience. Furthermore, the respondent formed the view that post Covid-19, should his previous job in hospitality re-emerge, that is where he wanted to be.

In response to a question from the undersigned about the age profile of the 4 appointees, the Area Manager stated that one was 23, two were around 30, one was late 30s.

He has frequently hired staff in their late 40s and 50s.

The criteria used were

Good aptitude,

A person looking to progress in their career,

Relevant experience.

Upon further questioning, the respondent stated that he did not have the grading of the complainant at interview relative to other candidates, nor marks awarded under the different criteria.

The process for making a complaint is that it goes to the UK Head Office and then it should be sent back to the Area Manager. Regrettably this did not happen

Legal submission.

The respondent points to the obligation which lies with the complainant by virtue of section 85A of the Acts and the obligation to establish that the primary facts upon which he relies are of sufficient significance to raise an inference of discrimination. The respondent refers to the illustration of how this obligation can be met as set out in Cork City Council v McCarthy EDA 21/2008 and to Melbury Developments Limited v Valpeters EDA -17/2009. Applying these authorities and statutory requirement to the circumstances of the instant case, the complaint has not raised an inference of discrimination.

The respondent refers to A Medical Doctor v A Medical School, ADJ- 0011021, where the adjudicator held that the difference in age between a 29-year-old and a 35-year-old was, of itself, insufficient to support a complaint of discrimination which is a similar age gap to that found in the instant complaint.

Should the adjudicator find that the complainant was discriminated on age, the respondent is entitled to the full defence available to then in section 15 (3) of the Acts which provides

“(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description”.

The respondent has complied with the above section and in this regard points to A Manager of an English School v An Institute of Technology DEC 2007-019, where the respondent had instituted an equal opportunities and anti – discrimination policy and was found not to have discriminated against that complainant.

Summing up, the respondent’s barrister stated that the respondent did not discriminate against the complainant on age grounds. The question about his age is disputed. The complainant did not put the evidence which is in conflict to the Area Manager in cross examination, namely that he, the Area Manager, asked him his age. Nor did he put the purpose of his questions about previous experience to the Area Manager: they should have been put to the Area Manager in order for me to be able consider them.

Crucially, no comparator has been identified, therefore, the treatment therefore can’t be held to be less favourable.

The respondent requests that the adjudicator should dismiss the complaint.

The issue for decision is whether the respondent’s decision not to appoint the complainant to the sales assistant’s position on the 3 November constitutes discrimination on age grounds in terms of section 6 (2)(f) and contrary to section 8 of the Acts.

Relevant Law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

 “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) ...”.

 Section 6(2)(f) of the Acts defines the discriminatory ground of age as

” That they are of different ages but subject to section (3) as the age ground.”

 The first obligation which the complainant must meet is compliance with section 85A of the Acts 1998-2015 which lays the onus of proof with him to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that

“In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that

“a complainant 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 was no infringement of the principle of equal treatment”

The complainant must discharge this evidential burden. If he does, the respondent must prove that he was not discriminated against on grounds of his age. If he does not, his case cannot succeed.

In order to achieve compliance with section 85(A)- the first step- he must satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20. These three requirements necessary to establish that a prima facie case exists are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

Applying the above test, the complainant is covered by the age ground in that he is asserting that younger candidates were appointed to the position of store assistant. This was confirmed by the respondent.

The specific treatment to which he states he was subjected was the request to declare his age at interview, the questioning at interview designed to reveal his age and the failure to investigate his complaint. The question- contested- about the complainant’s age is the crux of the matter.

The respondent denies that he asked the complainant for his age at interview. While not impossible, it does seem puzzling that the respondent Area Manager, the recipient of extensive training in equality legislation compliant recruitment procedures would commit such an ‘unforced error’. Though the complainant was unrepresented, his energies during the cross examination of the Area Manager centred on the latter’s errors in stating that he was dismissed, the probing questions, what he saw as the inconsistency of having passed the first stage of the interview, only to fall at the second stage, and the failure to follows up on his complaints. His evidence in chief recounted that he had been asked for his age, but he did not pursue this matter in cross examination. I do not accept, as advanced by the respondent’s barrister, that this omission prevents me from considering that alleged question. But it’s the emphasis which the complainant placed on the other elements of his complaint, rather than the discriminatory question that is noticeable. The Area Manager was surefooted and calm in his denial.

In a ‘close call’, these factors lead me to find the respondent Area Manager’s evidence on the age query to be more convincing.

The complainant also cited the probing nature of the questioning of his previous experience as evidence of a desire to discover his age. Bur interviews are commonly about examining the candidate’s previous experience and its compatibility with the requirements of the post in contention.  I do not find this be discriminatory behaviour. The fact that the complainant got through the first round and didn’t progress after the second interview is not evidence of discrimination on the grounds of age.

The treatment of his complaint was shoddy. The respondent should mend its fences by ensuring these systems are functioning as intended. But this shoddy behaviour happened after the alleged date of discrimination. Given that I do not find the content of the interview, cited as the last act of discrimination to be discriminatory, this omission cannot, of itself, support an inference of discrimination on the grounds of age as opposed to carelessness. Though the information was sought and put before him concerning an absence of transparency about marking, the complainant did not address this.  But as I find that the items identified by the complainant at interview not to be discriminatory and not to be of sufficient significance to raise an inference of discrimination, I do not consider that this omission on the part of the respondent can alter this conclusion.

On the basis of the evidence, I have found that the complainant has not met the test necessary for compliance with Section 85 A of the Acts and has not raised facts of sufficient significance from which I can infer discrimination so as to shift the burden of rebuttal to the respondent to prove that there was no discrimination on the age grounds.

I find that the complainant cannot succeed in his complaint of discrimination in terms of section 6 and contrary to section 8 of the Acts.

I find that the complainant has failed to establish a prima facies case of discrimination on age grounds in terms of section 6 (2)(f) and contrary to section 8 of the Acts. His complaint cannot succeed.

Discrimination on age grounds; conflict of evidence.