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Case Law Reviewed - Applicant Wearing Headscarf Was The Only Candidate Asked Where They Were From

December 01, 2022

Key Learnings

This Case is a reminder to Employers that the Employment Equality Acts also apply to non-employees who are applicants for employment through an Employer’s recruitment process. Employers should take steps to prevent discrimination in their recruitment activities and processes, including making all recruitment and selection competitions open to all suitably qualified applicants, ensuring recruitment decisions are made against specified criteria as required for the particular vacancy, and that every applicant is assessed against fair and consistent criteria relating to the job. 


Background

The Complainant claimed that she was discriminated against, contrary to the Employment Equality Act 1998 as amended, on the race and religion grounds in relation to access to employment.


Summary of Complainant’s Case

The Complainant said that she applied for the position of part time Administration Assistant at the Respondent’s tile shop which was advertised online. On Wednesday the 6th of April 2021 she said that she received a telephone call and was asked if she was available for interview on that day, which she accepted. The interview was arranged 4 o clock. She said that she advised the Respondent over the phone that she wears a headscarf. She went to the Respondent’s premises in Ballymount where she met the Operations Manager who interviewed her for the position.

The Complainant said that the minute the Operations Manager saw her, he looked at her from the top to the bottom. She said she believed that he did not expect someone wearing a head scarf. She said that he then sat down and looked at his computer and conducted the interview with his arms crossed. The first question he asked her was where she was from. She told him she was from Germany and then he asked where she was originally from. She told him she was German, but originally from Algeria but that she never lived there. She said that this question in her opinion, should not be asked. She said that she is skilled and was there to interview for a job that was advertised. She said that he looked into his computer for the second time and said ok.

The job advertised highlighted in bold that the Respondent was looking for someone covering the office during the weekend in Ballymount, which would have suited her perfectly for childcare reasons.

The Operations Manager then told her the job was based in Rathcoole and not in Ballymount and asked her if that suited her and she agreed because she could drive to Rathcoole which is not that far. He then went on to tell her that the job was a full-time post in Rathcoole. She pointed out that the job advertised was part-time at the weekends and she could not do a full-time job because of her childcare responsibilities during the week.

He said ok. He then told her they have someone working during the weekend and he will keep her CV. The Complainant said that the Operations Manager told her he knows what kind of people he wants and that she is “good and ‘’clean’’”.  She said that she did not understand what he meant by that. The interview concluded, and she left the office.

The Complainant said that she was not asked about her skills, nor was she interviewed or asked anything about her previous working experiences. The Operations Manager did not take any notes, and she believed that he was not interested in her work experience and skills. She said that she believes that the Respondent was not interested in hiring her for a front line position because she wears a headscarf. She submits that she was discriminated against on the race and religion grounds.


Summary of Respondent’s Case

The Respondent advertised for the position of Administrative Assistant online. The advertisement stated that the position was for ‘part-time hours covering weekend hours’ which were stated to be ‘Saturday 9.00 – 17.00 and Sunday ’13.00 – 17.00’. The advertisement also stated that the Job Type was ‘Full-time, Permanent” and the Schedule was “8 Hour Shift Monday to Friday”.

They Respondent stated that at the time of the advertisement, they had open positions for both weekday hours and weekend hours. Forty candidates applied for the position of which five candidates were shortlisted for interview. The interviews took place at the Respondent’s business premises at Ballymount and were conducted by the Operations Manager.

The Complainant applied for the position on 2 April 2021. and she was shortlisted and was invited for interview on 6 April 2021 at 4pm.

The Respondent generally conducts a two-stage recruitment process. A first-round interview is conducted on a relatively informal basis to establish if the candidate remains interested in the position, what their availability is in respect of hours and days they might be required to work and if they are required to give notice in their current employment. If the candidate remains interested in the role and is available for the hours and days required, then they are invited to a second-round interview. This is a more formal and detailed interview and would discuss the candidate’s previous work experience, relevant skills and requirements for the role.

The Respondent operates an equal opportunities policy in its recruitment and interview process. Job descriptions are advertised in line with the equal opportunities policy. The Company’s approach to advertisements and interviews is inclusive, consistent and non-discriminatory so as to ensure that no job applicant or employee is discriminated on any of the protected grounds

The Company has 70 employees and about half of them are non-Irish. The Operations Manager said that he is the son of immigrants from India. He said that he is involved in all aspects of the business and he has been employing people and doing interviews for 20 years and as far as he is aware there never has been a complaint about his interview technique before. He said that the Company often run advertisements and at the time they had a part-time vacancy in their Ballymount branch and a full-time role in Rathcoole. There were 2 advertisements running at the same time for these roles.

He explained to the Complainant at the informal interview that the part-time role in Ballymount was no longer available, but he had a full-time role in Rathcoole. The Complainant was looking for part-time work and he asked her if he could keep her CV on file because he believed she was a very good candidate and had a brilliant CV.

He said he could not remember if he made a comment about the headscarf, but he asked the Complainant where she was from as he believed they had something in common. He said that he wouldn’t have asked it if he thought it would have made her feel uncomfortable. He said that he sometimes asks other candidates this question. He said that he had no employees who wears a headscarf.  He denied he made the “clean” comment to the Complainant during the interview. He said that he always conducts interviews in a professional manner.
 
The advertisement for the part-time role went up on the 2nd of April and he interviewed the successful candidate on the 5th of April and held the 2nd interview on the morning of the 6th of April and offered him the job. He said that the reason he offered the part-time job straight away to the successful candidate without interviewing all the candidates is that it is hard to hire good employees and half of the people he calls for interview do not turn up. The reason he called the Complainant for interview even though he had already filled the part-time role was because he thought she might be interested in the full-time role he had in Rathcoole.

He said that he did not discriminate against the Complainant on either the race or religion ground.

The Respondent said that the Complainant has failed to discharge the legal threshold of a prima facie case of discrimination by failing to adduce any evidence to substantiate the allegations made or prove the primary facts upon which she relies. The Complainant’s case is comprised of unsubstantiated allegations with no objective evidence.

The Respondent denies that it discriminated against the Complainant as alleged or at all during the interview process and that at all times it followed a fair and transparent recruitment process.


Findings and Conclusions

The Complainant said that there was a discriminatory question asked at the interview about her nationality because she was wearing a headscarf. She submitted that the Respondent did not conduct a proper interview and told her the job was filled. The Respondent denies that the question was discriminatory, and submits the Complainant was not considered for the part-time position because a person had been appointed to that position before she did the interview and she was offered a full-time role which she was not interested in.

The Adjudicator noted that the Complainant said she was asked by the Operations Manager where she was from and when she said Germany he pursued the matter and asked where she was originally from. The Operations Manager accepted during the course of his evidence that he asked the Complainant where she was from, but he was unable to say if he had asked the same question of all the other candidates he interviewed that day.  It was the Adjudicator’s view that asking the Complainant, who was wearing a headscarf, about her nationality at an interview raises an inference of discrimination in the circumstances.  The Adjudicator was satisfied that the Operations Manager did not ask the Irish candidate and candidates of a different nationality to the Complainant, and who were not wearing a headscarf, about their nationality. The Respondent said the question was asked in the context of a friendly chat as he is the son of immigrants from India. The Adjudicator could not accept that it was an appropriate question. It was noted in particular that the Operations Manager did not accept the Complainant’s original answer that she is from Germany and pursued the issue and this could convey an indication he did not employ people from certain countries. The Labour Court has established that there is no need to establish intention to discriminate. Accordingly, the Adjudicator was satisfied that the Complainant had established a prima case of discrimination in that the interview question was discriminatory on the race ground.

The Complainant also claimed that she was discriminated against on the religion ground in relation to access to employment and submitted that the Respondent did not want to employ a person wearing a headscarf. She said that it was a front office job and the Respondent did not want to employ her for this reason. She said she was not given a proper interview and was not asked about her skills or experience. The Respondent said that while he accepted the Complainant applied for the part-time position it was filled by the time he interviewed her, and he discussed the full-time position in Rathcoole. The Complainant was not in a position to work full-time and he asked her if he could keep her name on file for future roles.

The Complainant has produced no evidence to support her contention that she was discriminated against on the religion ground in relation to access to employment. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

The Adjudicator was satisfied that the Complainant failed to provide any facts of sufficient significance to raise an inference of discrimination.

The Adjudicator accepted Respondent’s evidence that the part-time position was filled by another candidate he had interviewed earlier than the Complainant and it was for this reason alone he could not offer her the part-time position.

The Adjudicator found that the Complainant failed to establish a prima facie case of discriminatory treatment on the religion ground in relation to access to employment and accordingly, the Complainant was not discriminated against on the religion ground.


Decision

The Adjudicator found that the Complainant established a prima facie case of discriminatory treatment on the race ground in relation to the interview process.

However, the Complainant failed to establish a prima facie case of discriminatory treatment on the religion ground in relation to access to employment.

As this is an access to employment case, the maximum award of redress that can be made is €13,000. The Adjudicator noted that an award of redress in the amount of €1,500 was appropriate redress in the circumstances. The Respondent was ordered to pay this to the Complainant in compensation for the effects of the discriminatory treatment.

The award is redress for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).