Complainant

Respondent

Parties

Alan  Keogh

Domino Hr Ireland Limited

Representatives

  Self

Philip Lee

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-00056612-001

12/05/2023

The Complainant alleges that the Respondent discriminated against him during a recruitment process and that the grounds of discrimination are Family Status and Civil Status.

The Respondent was establishing  a new recruitment agency and  branch in Ireland. The Complainant applied for the position of Recruitment Manager. The Complainant stated that the process was going so well that the Hiring Manager in conversation was talking about plans for when the Complainant would start. The Hiring Manager is a partner with the firm.  The Complainant completed 6 interviews and psychometric assessments.  A further interview was organised with another senior partner in the firm. The Complainant alleges that the interview was going very well until he was asked about his activities outside of work and then asked if he had a partner and children. It is alleged  the  recruiting manager asked him how many children he had and how old were they. The Complainant stated that he had 3 children, and their ages were 11 months, 3 years and 13 years. It is alleged that the Complainant was then asked would he be ok to be in the office 5 days a week. Up until that meeting the Company had stated that the role would be a hybrid role with 3-4 days per week in the office. After that interview on 14th April 2023 the communication between the Company and the Complainant became slower and more difficult to arrange. Times were agreed for a phone update that never happened or was delayed significantly. Finally, the hiring manager called on the 11th of May 2023 to say that the Company had decided to offer the role to another candidate.

The Respondent denies the complaint entirely and that the Complainant was never directly asked about his family status and/or civil status. The Respondent denies that his family status and/or civil status was material, or of any relevance whatsoever, in respect of the decision not to offer him the position of Recruitment Manager. In fact, the successful candidate is also married and has children.

The assessment was entirely based on factors pertaining to the role. The preferred candidate had extensive experience as a recruitment and general manager for another multinational group who had expanded into the Irish Market. This was better experience than the Complainant’s and what the Respondent required. The preferred candidate also had led significant international assignments.

The Law

Discrimination is defined as:

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,

In this case the Respondent stated that the comparator must be the person who was hired who is also married and has children.

The Complainant relies on the following grounds:

(b) that they are of different civil status in this Act referred to as “the civil status ground”,

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”

The definition of each ground is as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

And civil status means:

"civil status" means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved;

In this case the chosen candidate also has children and is married.

The Complainant carries the initial burden to establish a ‘Prima Facie Case’.

Prima Facie:

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that 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.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a Claimant establishes a prima facie case of discrimination the onus shifts to the Respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58).

During the interview with another partner which was the final interview, it is alleged that the Complainant was asked the following:

·       If he had a partner or children?

·       How many children and what ages?

·       Was he ok with being in the office 5 days a week?

I note in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 by analogy discriminatory comments concerning sexual orientation made at interview can give rise to a presumption or inference of discrimination and that shifts the burden onto the Respondent to show that they do not have a discriminatory recruitment policy:

Statements

3-11

In a similar manner to its judgment in Firma Feryn NV,24 the CJEU determined in two judgments that direct discrimination on grounds of sexual orientation could be made out where homophobic statements are made. The first judgment concerned a senior member of a Romanian football club, who made homophobic remarks to Romanian media in relation to the recruitment of gay footballers.25 The CJEU determined that such facts were capable of amounting to “facts from which it may be presumed that there has been … discrimination” as regards a professional football club, even though the statements concerned came from a person presenting himself and being perceived in the media and among the general public, as playing a leading role in that club (being a shareholder) without necessarily having legal capacity to bind it or represent it in  recruitment matters.

3-12

In NH v Associazione Avvocatura per i diritti LGBTI,26 the CJEU similarly found statements suggesting the existence of a homophobic recruitment policy do fall within the concept of “conditions for access to employment … or to occupation”, even if they come from a person who is not legally capable of recruiting staff, provided that there is a non-hypothetical link between those statements and the employer’s  recruitment policy. This case considered a statement made by an Italian lawyer on a radio programme during which he stated that he did not wish to recruit or use the services of homosexual persons at his law firm. The CJEU listed three criteria to be taken into account for determining whether there is a link between a discriminatory statement and conditions for access to employment being: the status of the person making the statements; their discriminatory content; and the public or private context where the statements were pronounced.

3-13

The approach of the CJEU above had been noted as being a fair balance in the desire to protect LGBTI people from discrimination and that of freedom of expression, in particular as only statements which are linked “in a non-hypothetical way, to the recruitment policy of the employer at issue”.27 The judgment of the CJEU in NH adopts the approach of effectively asking the national Court to step into the shoes of the potential victim of discrimination as “only this can tell us whether a statement will have a dissuasive effect on their decision to apply for a job.”28

3-14

The foregoing case law is also a useful illustration of the shifting of the burden of proof to the respondent by reference to the discriminatory statement. In both cases, the CJEU referred to the statement made shifting the burden of proof on the prospective employer to demonstrate that it does not have a discriminatory recruitment policy. This recognises the deterrent effect of such statements on applicants. This could be demonstrated with evidence demonstrating that the employer distanced itself from discriminatory public statements and the existence of express provisions in its  recruitment policy aimed at ensuring compliance with the principle of equal treatment and not merely by evidence of having employed persons of different sexual orientations in the past.29 The practical utility of shifting the burden of proof to challenge discriminatory practices is well demonstrated in the case law—in particular for members of the LGBTI+ community.

If the statements made by the manager at the interview are accepted this would be taken this claim at its height. That in turn would shift the burden onto to the Respondent. The onus then shifts to the Respondent to prove that they did not operate discriminatory recruitment practices on the grounds of civil status and/or family status.

However, in this case this presumption can be rebutted as the evidence shows that the Respondent in fact hired another candidate who shared the same grounds now being relied upon to pursue a claim for discrimination. If that is so how can the proposition be maintained that discrimination has occurred arising from being treated less favourably to the successful candidate, a comparator, when that comparator also has the same family and civil status as the Complainant?

I note in Bolger, Bruton, Kimber; Employment Equality Law states that an inference of discrimination can be established at interview and yet be rebutted:

6-122

There has been a number of decisions in which the Labour Court has accepted an employer’s explanation for what might otherwise present as indirect discrimination of a non-Irish worker. The decision of the Labour Court in Aon Commercial Services and Operations Ireland v Beg 214 illustrates how a presumption of discrimination on grounds of race might be rebutted, in that case without much difficulty. The complainant was asked during a telephone interview about the origin of her name and whether she was born in India. The Court accepted that those questions, even if asked in an innocent context, could give rise to an inference of discrimination. However the Court found the employer had rebutted the presumption of discrimination and pointed to what it referred to as the “fluid” nature of the new centre of the company, in its infancy in Dublin, and its strong record of females of ethnic minority origin in senior roles. The Court said it accepted that whilst the questions posed were inappropriate, they were not motivated in any way by discriminatory attitudes. This does seem somewhat inconsistent with the earlier jurisprudence of the Court which emphasised heavily that intention was irrelevant where an employee had been subjected to discrimination on grounds of race.215

Transparency and Records:

In this case there are no records at all kept by the Respondent. That could be interpreted negatively. However, where the Respondent effectively rebuts the presumption or inference of discrimination  that negative conclusion in this case is  only relevant to support the Complainant’s prima facie case. In Employment Equality Law 2nd ed  an example is given to show where this may occur; however, it relates to shifting the burden.

6-106

In May v James Hospital,195 the burden of proof shifted to the respondent employer who was unable to demonstrate that the decision not to appoint the complainant, a South African black employee, to a position within the rheumatology department was not on grounds of the employee’s race. Whilst the employer argued that the employee had not performed well at interview and did not convey her experience in the key areas identified in the  job advertisement, the Equality Officer expressed dissatisfaction with the lack of transparency in the  interview process, as there was no breakdown in the marks allocated in two out of the three criteria used at  interview. The Equality Officer held that this factor, together with the employee’s better qualifications and greater experience and the failure of the respondent to apply objective criteria, meant that the respondent was unable to shift the burden of proof. The Equality Officer awarded €5,000 for loss of earnings for the failure of the respondent to appoint the employee to the position, together with €20,000 for the discrimination suffered and also directed the employer to put fair and transparent selection procedures in place.

This raises a further question can discrimination be maintained if the Complainant’s children are much younger as Civil Status cannot be relied upon if both the comparator and the Complainant have the same Civil Status? However, a Complainant could have much younger children than a comparator and, in that case, hypothetically could be discriminated based on the degree of care/dependency that was required. The Complainant details his grievance as follows:

I was taken aback by this line of questioning, as someone who interviews people for a living, and coaches people how to interview, I have never come across a scenario in real life where someone has taken this line of questioning. As I was caught off-guard, I answered the question and told him that I had three children and their ages (11m, 3 yrs and 13 yrs). He then asked if I was ok with being in the office 5 days a week (up until now, it had been agreed that the role would be a hybrid role with 3-4 days per week in the office, once I had hired staff)

Family Status is defined as:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

However, the Act states at section 6(2) c:

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”

This provision is unambiguous in that discrimination is defined where one has family status and the other does not. Therefore, I must conclude that where the successful candidate, who is  the comparator, also has family status it cannot be maintained that the Complainant was discriminated against.

I have determined that the Complainant has established a prima facie case arising from the evidence provided at the hearing, the documentary evidence that the candidate was at a point receiving extremely positive feedback until the last interview and based on the absence of any employer interview notes and marking record. These facts are of a significance that an inference of discrimination based on civil and family status was established. This meant that the onus shifted to the Respondent to show that in fact they did not discriminate against the Complainant on these grounds.

Both the Complainant and the comparator who is the successful candidate for the position have the same civil status. Therefore, it cannot be maintained that discrimination occurred on this ground.

This raises a further question can discrimination on the ground of family status be maintained if the Complainant’s children are much younger as Civil Status cannot be relied upon if both the comparator and the Complainant have the same Civil Status?

 However, a Complainant could have much younger children than a comparator and, in that case, hypothetically could be discriminated based on the degree of care/dependency that was required. The Complainant details his grievance as follows:

“I was taken aback by this line of questioning, as someone who interviews people for a living, and coaches people how to interview, I have never come across a scenario in real life where someone has taken this line of questioning. As I was caught off-guard, I answered the question and told him that I had three children and their ages (11m, 3 yrs and 13 yrs). He then asked if I was ok with being in the office 5 days a week (up until now, it had been agreed that the role would be a hybrid role with 3-4 days per week in the office, once I had hired staff”

Family Status is defined as:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

However, the Act states at section 6(2) c:

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”

This provision is unambiguous in that discrimination is defined where one has family status and the other does not. Therefore, I must conclude that where the successful candidate also has family status it cannot be maintained that the Complainant was discriminated against.

For these reasons I have determined that the Complainant has not been discriminated against on the ground of civil status and family status.

Discrimination-Family Status-Civil Status.