Complainant

Respondent

Anonymised Parties

A Job Applicant

A Public Body

Representatives

  Self-Represented

Lisa Moloney 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-00060599-001

19/12/2023

 The Complainant is an experienced solicitor and journalist. The Complainant submits that he applied for two roles with the Respondent for  which he  was more than qualified during 2023. These were   the position of Head of Legal Services (HOLS) and  a Higher Executive Officer role (HEO) in a legal capacity. He claims that those selected for these roles were  less experienced and less qualified   than himself.  The Complainant submits that he was  discriminated against in the recruitment process on the grounds of Civil Status, Gender, Family Status, Sexual Orientation, Religion, Age and Race, contrary to the Employment Equality Acts 1998-2015 (“the Acts”). The Complainant had originally submitted that he was discriminated against on the grounds of Disability, but he withdrew this dimension of the complaint during the hearing.

The Respondent submits that  fair procedure requires that the Complainant substantiates his claims of alleged discrimination at the time of lodging the claim, which would in turn permit the Respondent to investigate and to respond to the allegations being made prior to the date of hearing.

The Respondent submits that the sparse detail provided on the WRC Claim form does not discharge the burden of proof on the Complainant nor does it comply with WRC Procedures.

Without prejudice to this position, the Respondent  denies the Complainant’s claim that he was treated less favourably than another applicant. It is the view of the Respondent that no breach of the Acts has occurred, and the Respondent treated the Complainant fairly and in line with the natural justice throughout the recruitment processes.

RESPONDENT’S PRELIMINARY OBJECTION – OUT OF TIME.

The Respondent submits that the Complainant is now outside of the statutory time limit to submit any further claim(s) with regard to the HOLS position as outlined in his claim form. The Respondent submits that  a complaint or dispute must be referred within six months of the alleged contravention of the legislation. If a complaint is not within the time limit an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months, where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay. The  role was advertised with a closing application date of 24 January 2023. This Complainant was informed he had not progressed to interview stage in February 2023. The complaint was received by the WRC on 9 December 2023. Therefore, the Respondent submits  the allegation round the competition for the HOLS position which the Complainant cites, is outside of the 6-month timeline and as such, should be dismissed.

The Respondent  cites the Labour Court decision of   Cementation Skanska v A Worker DWT0425 16-105   where any application for an extension requires the Complainant “to show that there are reasons which both explain the delay and afford an excuse for it… In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant’s failure to present his claim within the six- month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated his claim in time”.

Accordingly, the Respondent requests that I have no  jurisdiction to hear the HOLS dimension of the  of the case.

The Complainant submits he  only became aware of the identity of the person who was ultimately given the HOLS position during the HEO interview process on 8 November  2023, which is therefore when the cause of action accrued, as it was only then that he could ascertain something of the details of the qualifications and experience of the appointee, and hence identify the cause of action.

The Complainant gave evidence under affirmation. He gave the  following details with regarding  the  protected grounds cited in his complaint:

Civil Status: Married,

Gender: Male,

Family Status: 4 children, one with special needs,

Sexual Orientation: Heterosexual,

Religion: Roman Catholic,

Age: 48

Race: Irish, but the fact that he lived previously in the UK, with his wife, who was a UK national, was a factor.

The Complainant gave evidence of his qualifications in his legal role, including being a prosecutor for the Crown Prosecution Service in  the UK and having experience of prosecuting and defending cases in the sector of industry where the Respondent operated. He gave evidence that on  account of  his  journalistic work, which included international and national  newspapers and journals,  his  protected religious and philosophical convictions, age, family status, family responsibilities and other sensitive personal information relating to protected characteristics are in the public domain and should have been known to the Respondent.

In cross-examination, the Complainant said he did not recall being asked questions on any of the protected grounds at the interview, but he does believe that the Respondent was aware of his civil and family status and therefore he believed  it was perceived by the Respondent that he would not always be available due to familial commitments. The Complainant disagreed with the proposition from the Respondent representative that he did not get the HEO role because he did not score high enough in the competency evaluation.  He inevitably assumed he was discriminated against. He said the facts speak for themselves and he was not got given the relevant data when he requested it. He accepted in evidence that he did not seek a review of the process, which was available to him, but said that he had no trust in the process.

Complainant Argument:

Given the apparent lack of any rational or objective justification for the relevant recruitment decisions, the Complainant  was  concerned that discrimination took place on the basis of protected characteristics. He  was not even being invited to interview for the HOLS position and he was not selected for the panel of HEO role on spurious grounds. He submits he  was amply qualified for both positions, and indeed substantially more than qualified for the second. It appears to him  that the Respondent instead selected people with far less experience for the roles in question and that this conduct was therefore obviously discriminatory, with no objective justification being put forward by the Respondent.  The Complainant asserts that the  Respondent furthermore has since refused to reasonably provide information which he  believes would have demonstrated its discriminatory conduct on spurious grounds which strongly suggests that it is attempting to hide the evidence of its unlawful discriminatory conduct.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

Evidence of Ms A, Human Resources Director for the Respondent:

The witness gave evidence under affirmation. She outlined that the Respondent had a statutory duty as a public body of ensuring  equality, inclusivity and transparency when recruiting people. The Respondent  came under  the regulations of the  Commission for Public Service Appointments (CPSA) and this allowed them to allow them to use a vetted employment agency, as had been used for the purposes of this case.

She said there was a  transparent scoring position for all roles using the measurements ‘Low’, ‘Medium’ and  ‘High’. The witness said the Complainant scored ‘High’ for qualifications for the HOLS role but scored medium for experience due to not having the regulatory experience in the industry catered for by the Respondent.

On the requests from the Complainant for the information on the other candidates, which included  details and information on age, religion, sex, sexual orientation, race, nationality, marital status, parental status the  number of children, the witness said that this was not given out because they did not request nor collect such data from candidates, and it was also obviously in breach of GDPR.

In cross-examination the witness was asked by the Complainant with regard to inclusivity and protected grounds and to how it was monitored when no data was collected. The witness said that none of the selection criteria was based on discriminatory grounds. She further said that the Respondent , like all public bodies is audited regularly on gender statistics and disability.  She said the Respondent does not gather it from job applicants but instead can reasonably give broad statistics from the  discernible data of employees. 

Evidence of Mr B, Head of Legal Services.

The witness gave evidence under affirmation and explained that he was a member of the interview panel and involved in the selection process for HEO. He said that  the interview with the candidates was on determining competency for the role and the questions, and the questions, which were the same for all candidates, revolved around the competencies of  leadership, management skills, specialist knowledge and the value of  public service. There was a scoring system of 1 to 5. A score below 3 was considered a disqualification. All candidates were asked the same questions and ultimately the chair would have the casting vote. The witness said that when the Complainant was asked, at the commencement of the interview to describe himself and  why he would consider himself suitable for the job, the Complainant volunteered the information on his marital and familial status. The witness said this was not considered in the ultimate decision not to award the position to the Complainant  and no questions on any of the protected grounds under the Acts, were asked by the panel.  

The witness said that the Complainant scored well in certain competencies, but he scored a 3 in an answer to  a question on self-development. The Complainant had noted that he asked the question on self-development but the answer from the Complainant seemed to focus on his (the Complainant’s) description of assisting his colleagues in the past on explaining the concept of discovery in law. The witness felt  the Complainant  may not have understood the question and asked the question and qualified it by saying “When did you require further training?”. The Complainant answered that he found himself at one stage of not being competent in court and asked a colleague for tips. The witness said that his answer fell far below the threshold necessary for a role like this. On the Complainant’s position that he had experience in the industrial sector where the Respondent operated, the witness said it was his recall that the Complainant had dealt with one case in the District Court.   In cross-examination the Complainant put it to the witness that  the interview was to evaluate technical skills. The witness made a distinction that the focus was on competencies.  

Respondent’s Argument.

The Respondent argues that the Complainant has failed to establish a prima facie case of discrimination as required by the Acts. It asserst that the burden of proof lies with the Complainant to demonstrate discrimination and provide credible evidence to support their claims. The Respondent cites section  Section 85A of the Acts, which places the burden on the complainant to establish facts from which discrimination may be inferred. Case law, including Melbury v. Valpeters Labour Court EDA0917 and Cork City Council v. Kieran McCarthy EDA0821, supports the requirement for the complainant to establish primary facts of discrimination. Furthermore, the Respondent contends that in  these cases, the Court  emphasises that speculation or unsupported assertions cannot be elevated to a factual basis for discrimination. The Respondent contends that the Complainant failed to identify a comparator to whom he was treated less favourably, as required by Section 6(1) of the Acts.

Regarding the specific allegations of discrimination based on various grounds such as gender, civil status, religion, etc., the Respondent argues that the selection process was competency-based and non-discriminatory. They point to interview notes and scoring matrices as evidence that the Complainant did not score as high as others, leading to his non-selection for the roles.

The Respondent also disputes the allegation that it  was aware of the discriminatory grounds, asserting  that no evidence supports such a claim. The Respondent references case law including the WRC decision of Mary Power v. Vialand Limited T/A Expert Removals ADJ-00033114, to support its position  that the burden is on the Complainant to prove awareness of discrimination.

The Respondent raised concerns about the Complainant's request for personal information of other candidates, which it  viewed as a breach of GDPR . Ultimately, the Respondent requests the dismissal of the discrimination claims, asserting that no prima facie case has been established and that  no breach of Section 8 of the Acts occurred in the recruitment process.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

RESPONDENT’S PRELIMINARY OBJECTION – HOLS POSITION OUT OF TIME.

Section 77(5)(a) and (b) in their  relevant parts provide:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

The Respondent argues that the Complainant's claim regarding the HOLS position falls outside the statutory time limit, which requires complaints to be referred within six months of the alleged contravention. It referenced the case law Cementation Skanska v A Worker DWT0425 16-105, which stipulates that an extension for filing a complaint beyond the time limit requires the Complainant to demonstrate reasonable cause for the delay, with a causal link between the circumstances cited and the delay.

The Respondent points out that the HOLS position was advertised with a closing application date of January 24, 2023, and the Complainant was informed of his non-progression to the interview stage in February 2023. However, the complaint was received by the WRC on December 9, 2023, well beyond the six-month time limit. Thus, it  argues that the allegation regarding the HOLS position should be dismissed due to being outside the timeline.

In response, the Complainant contends that he only became aware of the identity of the person who secured the HOLS position during the HEO interview process on November 8, 2023. He argues that this is when the cause of action accrued because it was only then that he could ascertain details about the qualifications and experience of the appointee, thus identifying the cause of action. Therefore, the key issue revolves around when the actual last act  of discrimination occurred, with the Respondent asserting it was in February  2023, and the Complainant arguing, that for  it was on * November 2023.

Section 5 is quite clear that the six-month period starts from the date of the “occurrence of the discrimination”. This subsection has been strictly interpreted in a literal sense and does not encompass the period when the employee became cognisant of the discrimination. The Labour Court in HSE v Whelehan EDA0923 stated that “had the Oireachtas intended to provide a discoverability test it could easily have made such a provision”. I therefore reject the Complainant’s argument that the reasonable cause was that the cause of action accrued on 8  of November 2023. Furthermore, the Complainant is a diligent legal professional and should  have been aware of the time limits under the Act. Therefore, I find that the alleged discrimination with regard to the HOLS position was out of time and the remainder of my decision addresses the alleged discrimination for access to employment for the HEO role only.

Case law establishes the fundamental principle that the role of bodies like the WRC or Labour Court isn't to impose their own judgments on which candidate is most suitable, but rather to safeguard against discriminatory practices in the selection process and ensure that relevant competencies are properly evaluated.

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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.”  

 When  considering the primary facts adduced by the Complainant I must  take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was 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 to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“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 occurred.”

The Complainant  falls within the  discriminatory grounds of Civil Status, Family Status,  Sexual Orientation, Gender, Religion, Age and Race. I need to assess whether the Complainant has sufficiently demonstrated, based on the  evidence, the primary  facts necessary to claim potential discrimination in employment access, on the seven grounds mentioned. If the Complainant establishes, on the balance of probabilities, these primary facts, and I deem them  significant enough to suggest discrimination, then the burden shifts to the Respondent to demonstrate that there was no breach of the principle of equal treatment.

On the face of it the Complainant seems to suggest, that because he did not have access to information which the Respondent did not collect for the position of HEO, namely the protected grounds of the other candidates, then he could assume that he was discriminated on all the grounds cited, and that was the reason he did not receive the position.  I do not accept this as a plausible argument for a number of reasons: Mr B gave convincing evidence, supported by interview notes and matrices, that  the Complainant's score fell short of other candidates', leading to his  inability to secure the role. Mr B gave uncontested  evidence that the  interview process strictly followed non-discriminatory practices, utilising questions from a standardised interview booklet applicable to all candidates. Furthermore, evidence was given that the  decision on role allocation was exclusively determined by the competency-based  interview performance.

I am satisfied that the  information sought by the Respondent with regard to the other candidates, and the protected grounds that covered them, was not collected by the Respondent. Furthermore,  I am convinced that even if the Respondent witnesses  had knowledge of the Complainant’s protected grounds from newspaper and magazine articles penned by the Complainant, such knowledge alone does not establish a primary fact which infers unlawful discrimination.   

Having considered all the evidence and submissions in this case, I am satisfied that the Complainant position was that of mere speculation and assertions . Simply put, without evidence, speculative claims cannot serve as the foundation for inferring discrimination, and I therefore find that the Complainant has not established a prima facie case of discrimination under section 85A of the Acts.

For the reasons outlined above, I decide that that the Complainant did not establish a prima facie case of discrimination in accordance with section 85A of the Acts therefore I find that the Respondent did not engage in unlawful discrimination. 

Employment Equality Acts 1998-2015, Civil Status, Gender, Family Status, Sexual Orientation, Religion, Age, Race, Time Limits.