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Decision To Exclude Employee From Interview Costs Employer €6,000

Claim: This case involved a series of Employment Equality Act complaints of discrimination on grounds of gender and race together with an Industrial Relations Act claim for bullying. The Complainant had also initiated a High Court Personal Injuries action related to the alleged bullying.

The Industrial Relations claim proceeded regardless of a personal injuries case in being before the High Court on the same facts.   

Facts: The Complainant is a Portuguese national and has been employed by the Respondent insurance company since 2011, initially as a claims officer and ultimately occupying the role of Policy Management Officer at the relevant time.  Her role involved her working through Portuguese as well as English. The Complainant went on sick leave in early February 2019 after two incidents over two days, one where she alleged her Team Lead shouted at her and the next day where she alleged her Team Lead threatened her with a PIP on the unjustified basis that she needed to improve her behaviour. The Complainant submitted a complaint against her team lead to HR.

A few weeks after this incident a role became available on a different team for a claims handler working through Portuguese which the Complainant applied for on the 28th of February.

The Respondent’s recruitment department accepted her application for the role but then in an email on the 11th of March required her to obtain a medical cert to state that she was fit for interview. She obtained the cert on the 15th of March but was then told that she could not proceed to interview as the role had already been filled. The Complainant discovered a week later that the role had been filled by a male colleague.

The Complainant argued that the actions of the Company involved discriminatory treatment on the ground of gender. The main basis for this argument was that this decision to proceed with the interviews without her happened around the same time of the complaint about her team leader’s behaviour and that there was a total lack of transparency and fairness in how the decision was made. The Respondent argued that the decision only related to their need to obtain a medical certificate and pointed out that the Complainant was able to interview for a similar vacancy a few weeks later and that the role was not senior to the one she had at the time.

The Complainant viewed the interaction with her manager as harassment on the grounds of race and submitted a complaint under the Employment Equality Act on this basis. She also submitted a complaint that the workload for Portuguese speakers on the team was much higher and that this constituted discrimination on the grounds of race. Both of these complaints were ultimately considered out of time by the WRC Adjudicator and were disputed by the Respondent.

The Complainant had also raised gender discrimination complaints relating to her previous end of year performance and associated bonus. She alleged that the Respondent marked her down as a result of her maternity leave in 2018, that she had been on track to receive a “Far Exceeds” rating but due to her taking maternity leave in late 2017/early 2018 was marked down to “Highly Effective”. The Respondent accepted that they as a matter of policy mark women on maternity leave as “Meets Expectations.” While these claims were ultimately out of time it is difficult to see how the Respondent would be able to defend this claim if they were not. Automatically reducing a high performing employee’s performance rating down solely due to maternity leave would likely have been found to be discriminatory under the Employment Equality Act.

Finally, the Complainant brought a complaint under the Industrial Relations Acts related to alleged bullying. As this matter was ultimately the subject of High Court proceedings the WRC Adjudicator did not take a definite view on the detail of the claim however that the fact that the Adjudicator decided to hear the complaint in these circumstances is somewhat surprising. The Adjudicator in her decision noted that the Complainant had been absent due to sick leave since the alleged bullying incident and recommended that the Respondent engage a third party to see if a return to work might be facilitated.

Decision Regarding Gender Equality and Interview: While in many ways this was not a very convincing gender equality case, as there is no suggestion in the decision that the Complainant’s interactions with her team lead had anything to do with gender or that it had any bearing on the decision of the recruitment department regarding the interviews, the Complainant was still able to establish that she had a ‘prima facie’ case under the Employment Equality Acts and it then became the Respondent’s role to prove that discrimination did not occur.

The Adjudication Officer in deciding that the Complainant’s case met this threshold to shift the burden of proof onto the Respondent cited a number of cases but in particular relied on Hallinan v. Moy Valley Resources[1] where a Equality Officer held that in order to establish a prima facie case of discrimination, the following must be established: (a) The complainant must establish that he or she is covered by the protected ground; (b) Establish the specific treatment has allegedly taken place (c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

The Adjudication Officer took the view that the Complainant met the above test in that she established that: (a) she was covered by a protected ground (gender); (b) that she had established specific treatment as she was denied an interview and the person who was appointed to the role was male; and (c) though there was no extra salary involved in with the post the denial of opportunity to move around the company was less favourable treatment compared to the male colleague.

The Adjudication Officer also quoted the Labour Court in their decision O’Higgins V UCD[2]:

 “It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn”

As such they found the burden of proof shifted to the Respondent and that there was a presumption of discrimination that the Respondent was then required to rebut.  

The Respondent was ultimately unable to satisfactorily explain its conduct, particularly as it seems they had requested that the Complainant provide a medical cert while they were conducting interviews and did not set a clear timeline for the Cert so the Complainant could interview. Similarly, they did not satisfactorily explain when and why the decision was made to complete the interviews without her. The Complainant had submitted a number of subpoenas covering her Team Lead, Department Manager and a person involved in the recruitment process,  however the Respondent was unable to produce any of these people as they had either left the company or were on long term leave.

As such the Adjudication Officer found that the Respondent did not rebut the presumption that discrimination occurred and found in favour of the Complainant and awarded her €6,000.

Somewhat confusingly the decision cites race as a the basis for the discrimination regarding the interview process however this may have been a typo.

Takeaway for Employers – This decision serves to remind employers of the importance of conducting interview processes fairly and with transparency and to ensure to maintain a good relationship with staff likely to be required to give evidence in a claim. Once the responsibility to disprove gender or any other type of discrimination is shifted to an employer, often the best defence is to show evidence of clear and transparent basis for the decisions and actions taken at the time. The absence of this, particularly when it comes recruitment, can be a serious risk for employers.  

Link- https://www.workplacerelations.ie/en/cases/2021/march/adj-00024079.html

Authors – Anne O’Connell & David Murphy

21st April 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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