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Discrimination on the Grounds of Race and National Origin – Burden of Proof on Employee to Establish

The recent case of Microsoft Ireland and Amjad Shaaban ADJ-00023393 CA-00029913-001 is a useful summary of the law concerning discrimination on the grounds of disability pursuant to the Employment Equality Acts 1998 (as amended).BackgroundThis Labour Court case concerned an appeal by  Amjad Shaaban against a decision of an Adjudication Officer in his complaint of direct and indirect discrimination on grounds of race against Microsoft Ireland as regards access to employment. The employee alleged that he was discriminated against on grounds of race in a recruitment competition for a temporary acting position of Account Executive in May 2019.  He submitted that the selection criterion in the impugned competition was set to favour people who have previously worked for Microsoft, especially in Egypt, Dubai or Africa and that was the sole reason he was not selected for appointment.Microsoft outlined that it did not consider race as part of any recruitment process and indeed nationality was not sought on any appllication form. It noted that the employee was one of only nine candidates successful in being shortlisted for interview from a candidate pool of 102 persons following the first phase of the recruitment competition. Of the nine persons interviewed, the employee was one of only four who was successful in being placed as a ‘hire’ as a result of the competition. In the company, a successful candidate who is identified as ‘hire’ is a person deemed suitable for appointment subject only to the availability of a vacancy. The three candidates placed above the employee as ‘hires’ did not identify their nationality in their application forms. Each of the three was appointed to a role because a vacancy existed but the employee in this case, in the absence of a fourth vacancy, was not.Labour Court The Labour Court firstly noted that the burden of proof was on the employee Mr Shabaan to establish facts pointing to an inference or indication of discrimination. It referred to the case of Southern Health Board v Mitchell [2001] ELR 201 which considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and held:“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 a presumption of unlawful discrimination.It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”It concluded that a Complainant had to establish both the primary facts upon which they relied and that those facts were also of sufficient significance to raise an inference of discrimination. It further referenced the case of Melbury Developments Ltd v Valpeters [2010] ELR 64, where the Labour Court noted that mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.Conclusions of the CourtThe Court noted the allegation of the employee that one of the interview board members knew the national origin of at least one successful candidate having worked with him previously but noted it had been given no basis for drawing an inference of discrimination from the supposed state of knowledge of an interview board member as regards the national origin of a successful candidate at interview. It also noted a reference of to direct discrimination on grounds of his national origin which the employee stated was supported by copies of e-mails between persons not associated with the impugned competition and dating from 2017 together with an assertion that one of the authors of such mails was able to influence the outcome of the impugned competition. It noted that the emails in question had a particular context in relation to a particular employee and could not be determined to be evidence of either a specific or general discrimination against a person of any national origin or in favour of another by comparison.The employee in this case had also alleged that a member of the interview board made comments which he alleged were discriminatory but offered no other evidence to the Court to support his allegation that these disputed comments were made. The interview notes submitted to the Court did not make reference to such comments. The Court here had to weigh up the conflicting evidence and set out its reason(s) for favouring one recollection over the other. It noted that it was  significant in the Court’s view that the interview process concerned involved consideration of the candidature of nine individuals. Four candidates graduated from that interview process and five did not. The employee was one of the successful graduates from the interview process. It noted that no evidential basis was present to conclude that a member of the interview board made the statement variously described by the employee or that any statement was made which could be inferred to be discriminatory in nature.The employee also asked the Court to find that his qualifications for the role being recruited for were superior to those of a person placed above him on the list of ‘hires’ decided upon by the recruitment competition. That person was asserted to be Egyptian and the employee based that assertion on the personal knowledge of his representative.The Court noted that it had no function in placing itself in the position of those carrying out an assessment of candidates for appointment to a role. In Director of Public Prosecutions and Robert Sheehan [EDA 0416] the Court described its function as follows:“In the present case, the responsibility for assessing the merits of the candidates for the disputed post was deputed to a selection board consisting of members whose qualification for the task assigned to them is beyond question. In these circumstances, and in the absence of evidence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the selection board”.The Court could find no basis to conclude that the decision of the interview board or the entire recruitment process was ‘manifestly irrational’ and that the employee in this case had not established facts which an inference of direct discrimination based on national origin could be drawn.The employee in this case had also alleged that he was indirectly discriminated against on the basis of his national origin by the Respondent. In support of that contention the employee had submitted that the Respondent had a policy of giving preference in recruitment to persons with prior knowledge or experience of the company’s products and that this policy had the effect of favouring persons of Egyptian nationality and disadvantaging person of Syrian origin. The employee offered no statistical or objective evidence to support his assertion in this regard. He had in essence contended that persons of Syrian origin were disadvantaged by this alleged policy on the basis that the company had never operated in Syria.The Labour Court observed that “Indirect discrimination arises where an apparently neutral provision criterion or practice puts persons having a protected characteristic at a particular disadvantage”. It noted that the employee here was saying that an alleged policy of giving preference in recruitment to persons with prior knowledge or experience of the company’s products placed Syrian nationals at a particular disadvantage vis-a-vis Eqyptian nationals. In reviewing all the facts, the Court concluded that the employee in this case had not discharged the burden resting upon him to establish primary facts from which an inference of indirect discrimination based on his national origin could be drawn.Learning PointEmployers should ensure they have proper equality policies in place to ensure that they are protected in respect of claims for discrimination. Proper training should be put in place to ensure all employees and contractors are familiar with the policies.Employers should also be mindful of keeping proper notes and records of any interview process as it can be difficult to defend a claim where such documents do not exist.

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