Case Number: DEC-E2012-026- Full Case Report. Equality Tribunal

Docket NumberDEC-E2012-026- Full Case Report
Date13 March 2012
CourtEquality Tribunal
EQUALITY OFFICER DECISION NO: DEC-E/2012/026

PARTIES

PRYLE
(REPRESENTED BY ANDREW WHELAN BL
INSTRUCTED BY DONAL TAAFFE & COMPANY - SOLICITORS)

AND

GAELTEC UTILITIES LTD.
(REPRESENTED BY KARA TURNER BL
INSTRUCTED BY KILRANE O'CALLAGHAN & COMPANY - SOLICITORS)

File No: EE/2009/622 Date of issue: 13 March, 2012


Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8, 31 & 77A - race- - discriminatory treatment -access to employment - indirect discrimination - frivolous and vexatious

1. DISPUTE

This dispute involves a claim by Mr. David Pryle, who is an Irish national, that he was discriminated against by Gaeltec Utilities Ltd. ("the respondent") on grounds of race in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to sections 8 and 31 of those Acts when it failed to appoint him to the positions of (i) Lines Person and (ii) Safety Officer following two separate selection processes in April, 2009. The respondent rejects the complainant's assertions in their entirety and notwithstanding this argument submits that the complainant's claim of direct discrimination on grounds of race is frivolous and vexatious in terms of section 77A of the Acts as the candidates who were successful following both selection processes were also Irish, the same nationality as the complainant.

2. BACKGROUND

2.1 The complainant states that he applied for the position of Lines Person with the respondent, a company which specialises in the design and installation of electricity and telecommunications infrastructures, in April, 2009 in response to an advertisement in a local FÁS Office. He adds the advertisement stated that applicants should be a qualified Lines Person with at least three years' experience of building high voltage lines and that a knowledge of Portuguese is preferred. The complainant was not called for interview and contends that the requirement to have a knowledge of Portuguese for the position is discriminatory as it acts as a barrier to the employment of Irish nationals, who are extremely unlikely to speak that language. The complainant further states that around the same time he was interviewed by the respondent for the position of Safety Officer. He states that he was also unsuccessful in that process and contends that in the course of the interview he was asked how he would communicate with a Portuguese speaking crew. He submits that the reason he was not offered the position of Safety Officer was because he was an Irish national and was unable to speak Portuguese. The respondent rejects the complainant's assertions that it discriminated against him and submits, as a preliminary point, that the complainant's claim of direct discrimination is frivolous and vexatious in terms of section 77A of the Acts

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 20 August, 2009.
In accordance with his powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 2 December, 2011, the date the complaint was delegated to me. Both parties had filed submissions at that time and a Hearing on the complaint was scheduled for 22 February, 2012. On perusal of these submissions it appeared the respondent's arguments that the complainant's assertion of direct discrimination on grounds of race was frivolous and vexatious in terms of section 77A of the Acts might be well founded and the complainant's representative was requested to file a supplemental submission by a particular date, setting out any arguments it might have in terms of any assertions of indirect discrimination of its client on grounds of race. Despite a number of extensions to this deadline the Tribunal did not receive the submission. However, in the course of the Hearing on 22 February, 2012 Counsel for the complainant argued that the alleged treatment of the complainant amounted to indirect discrimination of his client contrary to the Acts. In the interests of natural justice I permitted the arguments to be advanced and as this was the first occasion on which the respondent had heard those arguments, I allowed it a period within which to file a response in writing. This process concluded on 6 March, 2012.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The complainant states that he saw an advertisement in his local FÁS Office wherein the respondent was seeking applications for the position of Lines Person. The complainant adds that this advertisement stated applicants should be a qualified Lines Person with at least three years' experience of building high voltage lines and that a knowledge of Portuguese is preferred. He contends that given his qualifications and extensive experience he was an excellent candidate for the position and was surprised when he was not called for interview following a preliminary screening process. He asserts that the decision rejecting a candidate of his calibre without interview must be based solely on the fact that he is an Irish national and cannot speak Portuguese. It is submitted that this treatment constitutes direct, or in the alternative indirect, discrimination of him on grounds of race contrary to the Acts. In the course of the Hearing the complainant accepted that the two applicants who were deemed suitable for interview after the preliminary screening process were Irish but argued that as neither was subsequently appointed to the post, the failure to interview him amounted to direct discrimination. In support of his claim of indirect discrimination it is submitted on the complainant's behalf that the statement in the advertisement that a knowledge of Portuguese was "preferred" is akin to it being required. It is further submitted on behalf of the complainant that a requirement to have an understanding of Portuguese is a factor which puts Irish nationals at a particular disadvantage in comparison with Portuguese nationals and it acts as a barrier to the employment of the former in the respondent company. The complainant seeks to rely on the Determination of the Labour Court in Noonan Services v A Worker in respect of his arguments on this issue. In the course of the Hearing the complainant was unable to state whether or not the two candidates selected to attend at interview for the post had a knowledge of Portuguese.

3.2 The complainant states that around 20 April, 2009 he received a phone call from the respondent (Mr. K) inviting him to attend for interview at the respondent's premises in Kilkenny for the position of Safety Officer. The complainant adds that this position had not been advertised and he had not previously indicated any interest in it. However, in the course of the Hearing the complainant accepted that he had requested an acquaintance of his, who worked in the industry, to canvass on his behalf to prospective employers and further accepted Mr. K's version of events as to how the invitation to attend at interview arose. The complainant states that towards the end of this interview Mr. K asked him a question about how he (the complainant) would deal with a Portuguese speaking crew. The complainant adds that he was not offered the position after this interview and submits that this constitutes indirect discrimination of him on grounds of race as the question put to him amounts to a discriminatory question and is unlawful in terms of the Acts. In the course of the Hearing the complainant stated that he did not consider himself suitably qualified for the position of Safety Officer.

4. SUMMARY OF...

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