Alexion Pharma International Trading (Represented by Ms Lorna Lynch, B.L., Instructed by A&L Goodbody, Solicitors) v Alan Bermingham
| Jurisdiction | Ireland |
| Judgment Date | 05 March 2018 |
| Judgment citation (vLex) | [2018] 3 JIEC 0501 |
| Court | Employment Appeal Tribunal (Ireland) |
| Date | 05 March 2018 |
| Docket Number | FULL RECOMMENDATION,DEC-E2017-047,DETERMINATION NO.EDA1816 |
Labour Court (Ireland)
FULL RECOMMENDATION
ADE/17/63
DETERMINATION NO.EDA1816
DEC-E2017-047
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Tanham
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
1. Appeal of Adjudication Officer Decision No. DEC-E2017-047.
2. The Decision of the Adjudication Officer was appealed to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 6 February 2018. The following is the Determination of the Court:-
This is an appeal by Mr Alan Bermingham against the Decision of an Adjudication Officer (formerly an Equality Officer) DEC-E2017-047 in his claim of discrimination on the ground of age. He claimed that he suffered discrimination on the ground of age in relation to access of employment within the meaning of section 6(2)(f) of the Employment Equality Acts 1998–2011 (the Acts).
For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Alan Bermingham will be referred to as “the Complainant” and Alexion Pharma International Trading will be referred to as “the Respondent”.
The Complainant referred his case to the Equality Tribunal on 7 th March 2014. A hearing was held on 27 th July 2015. The Adjudication Officer issued his decision on 14 th June 2017. On 18 th July 2017 the Complainant appealed the Adjudication Officer's Decision. The appeal came before the Court on 6 st February 2018.
The Respondent is the Irish affiliate of Alexion Pharmaceuticals Inc., a global biopharmaceutical company, which established operations in Ireland in June 2013. At the start-up phase in 2013 the Respondent was engaged in active recruitment to establish the workforce which was facilitated by appointed recruiters. The Respondent currently employs approximately 342 employees in Ireland.
The Complainant was 57 years of age at the material time. He applied for a position of Artwork Specialist with the Respondent on 14th October 2013 through CPL Resources (the Agency). The Agency is not impleaded in the case. That same day he received a telephone call from the Agency and, following a conversation about his application, the Agency indicated that it was referring his application to the Respondent's Hiring Manager. The Agency made a number of enquiries of him concerning any required notice he may have to give, when could he start if offered the position, if he had any holidays booked, etc. The Agency forwarded his application to a more senior colleague within the Agency who was charged with submitting candidates to the Respondent's Hiring Manager which she did by email on 17th October 2013. The Hiring Manager responded on 18th October 2013 and stated the following:-
• “Not sure that the candidate is suitable for the role. Although he has great artwork experience he has very little experience managing the specific artwork process in a multi-national.
Would Ian be able to do a phone screen?”
Later that day the Complainant was informed that he had been selected for a telephone interview with the Respondent, which was due to take place on 23rd October 2013, duration thirty minutes. Following this notification, he was informed by the Agency that he was invited to attend an Interview Preparation Session in the Agency to be conducted by two Agency employees on 21st October 2013. He was informed that the purpose of this session was to go through the types of questions he would be asked at the interview with the Respondent and to assist him to prepare some strong answers.
The following day, 22 nd October 2013, the Complainant received a telephone call from the Agency to inform him that the job was on hold as the Respondent were recruiting for a number of other roles and this role was not a priority.
On 31 st October 2013 the Complainant discovered that the position was advertised by another recruitment agency. He applied, however, that agency said that they could not progress his application as it was being attended to by the first agency.
Then on 4 th November 2013 he sought clarification from the Agency as to why the position was being advertised by another recruitment agency. He received a telephone call in response and was informed that the position was on hold as the Respondent was interviewing two candidates with backgrounds in the pharmaceutical industry.
Later that day he received telephone calls from two senior employees in the Agency who informed him that his scheduled interview with the Respondent would not proceed as it required candidates to have previously worked within the pharmaceutical industry.
He informed both that he intended escalating his grievance with the process to the Respondent's Chief HR Officer in the US. That same day he also received a telephone call from the Respondent's HR Director, based in Lucerne, Switzerland, who reiterated the position that the Respondent stipulated that candidates for the position must have previously worked within the pharmaceutical industry in order to be considered. The Complainant described this call as “an extremely heated call” in which he presented the same arguments he had to the two previous callers from the Agency.
On 8 th November 2013 the Complainant was alerted to the position being advertised by a third recruitment agency. He submitted his application but was informed that, as the first Agency was handling his application, it could not proceed with him as a candidate. A similar situation arose on 11 th November 2013 when a fourth agency alerted him to the position and again informed him that it could not progress his application for the same reason.
On 16 th December 2013 the Complainant sent a letter to the Respondent's Chief HR Officer in the US complaining about the recruitment process and raised his concerns around the Respondent being an equal opportunity employer and suggested age discrimination was the reason behind the cancellation of his scheduled interview with the Respondent. He received an email reply on 23rd January 2014. This stated, inter alia, that his interview with the Respondent's Manager should not have been scheduled before he was interviewed by the Agency. She said that “What occurred was outside of the desired process” as an interview with the Respondent should not have been set up prior to the Agency having a formal first round interview with him. She made no...
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