Complainant

Respondent

Parties

Elena Valentina Sadagurschi

Aramark

Complainant

Respondent

Anonymised Parties

Representatives

Lydia Dodd IBEC

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-00044858-001

30/06/2021

The Complainant is seeking adjudication by the Workplace Relations Commission under 77 of the Employment Equality Act, 1998 and has submitted that she was discriminated on the grounds of gender, civil status, family status, religion, age, race and  in getting a job (CA-00044858-001).

Much of this evidence was in conflict between the parties and I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints.

The Complainant applied for the position of Senior Financial Planning Analyst with the Respondent on the 21st January 2021 via LinkedIn. The Complainant received an automated email from LinkedIn on the 23rd of January 2021 that her application was viewed by the Respondent.

The Respondent confirmed that her CV was forwarded to the Respondent and was informed by the recruiter for the Respondent that they  had decided not to progress with her application. The Complainant noticed that the same role continued to be advertised.

The Complainant raised a GDPR complaint to the Data Protection Commission after the Complainant didn’t reply to the GDPR request and she was ultimately provided with an email exchange between the hiring manager and recruiter which provided a different perspective than the initial reply the Complainant received from the recruiter.

The Complainant believed that the hiring manager, who she knew, had a different non-transparent set of requirements for the position she applied for which made the recruitment process discriminatory and biased. The Complainant sent the request for information (EE2) to the Respondent on the 21st March 2022.

The Complainant submitted that she was qualified for the position on offer and had the requisite experience and believes she has been treated unfairly by the Respondent in not being afforded an interview. 

Following the hearing of this matter, the Complainant provided additional submissions wherein she withdrew the claims of discrimination on the grounds of religion and marital status. The Complainant maintained that she had been discriminated against on the basis that she was a  young single non-Irish woman.

This Complaint was received by the Workplace Place Commission on the 30th June 2022.

The Respondent provided written submissions and refutes any suggestion that the Complainant was discriminated against on any of the grounds specified and was treated in a manner any different to other prospective employees.

In the course of the hearing of this matter, the Respondent stated the role advertised required certain requirements, experience and qualifications that the Complainant did not have.

It is the Respondents position that the Complainant was treated fairly and in line with natural justice throughout the recruitment process. Further, the Respondent submitted that the Complainant has not provided facts from which a prima  case of discrimination can be established.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. 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 and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their

proper context. It also indicates that in considering if the burden of proof shifts the court should

consider any evidence adduced by the Respondent ..”.

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court

commented in Cork City Council v McCarthy [EDA 0821] 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 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 Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated 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. 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 Southern Health Board v. Mitchell Labour Court AEE/99/E, the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is: -

“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 the presumption of unlawful discrimination.”

The Labour Court went on to say that: -

“It is only if those primary facts are regarded…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.”

In establishing a prima facie case of direct discrimination, the complainant must, therefore, establish (a) that they are covered by the relevant discriminatory ground and (b)  that there was specific treatment by the respondent, which could reasonably give rise to the presumption that less favourable treatment of the complainant had occurred.

In the circumstances of this case, I am satisfied, on the balance of probabilities, based on the complainant’s own evidence, together with the submissions filed and the documents tendered into evidence, that the Complainant has not established a prima facie case in raising an inference of discrimination in relation to any of the grounds specified.  Accordingly, this complaint is not well founded.

I find that the Complaint (CA-00044858-001) made pursuant to Section 77 of the Employment Equality Act, 1998  is not well founded.