DEE915

Labour Court Database __________________________________________________________________________________ File Number: AEE911 Case Number: DEE915 Section / Act: S21EE Parties: A PROSPECTIVE FEMALE EMPLOYEE - and - A COMPANY;CIARAN O'LOUGHLIN B.L. INSTRUCTED;BY JAMES D. AITKEN & CO. SOLICITORS

Subject:
Appeal by the Employment Equality Agency, on behalf of the worker against Equality Officer's Recommendation NO. EE31/1990 concerning an allegation that in withdrawing an offer of employment which had been previously made to her the Company discriminated against the claimant in terms of Sections 3(1) and 3(3)(a) of the Employment Equality Act 1977, within the meaning of Section 2(b) of that Act, by not appointing her to a position as an actress with the Company.

Recommendation:
The Determination in this case too long for the recommendation
field of the Database. It is held in the Document Field.

Division: Ms Owens Mr McHenry Mr Rorke

Text of Document__________________________________________________________________

AEE911 DETERMINATION NO. DEE591

THE LABOUR COURT

EMPLOYMENT EQUALITY ACT 1977
SECTION 21, EMPLOYMENT EQUALITY ACT 1977

PARTIES: A PROSPECTIVE FEMALE EMPLOYEE
(Represented by the Employment Equality Agency)

AND

A COMPANY
(Represented by Ciaran O'Loughlin B.L. instructed
by James D. Aitken & Co. Solicitors)

SUBJECT:
1. Appeal by the Employment Equality Agency, on behalf of the
worker against Equality Officer's Recommendation NO. EE31/1990
concerning an allegation that in withdrawing an offer of
employment which had been previously made to her the Company
discriminated against the claimant in terms of Sections 3(1) and
3(3)(a) of the Employment Equality Act 1977, within the meaning of
Section 2(b) of that Act, by not appointing her to a position as
an actress with the Company.

BACKGROUND:
2. The background to this case is as set out in the Equality
Officer's Recommendation which is Appendix I to this
Determination. The Equality Officer, in his Recommendation which
was issued on 11th December, 1990, found that the Company did not
discriminate against the claimant.

3. The Agency appealed the above recommendation on behalf of the
claimant on 21st January, 1991 on the following grounds:

(1) The Equality Officer was wrong in law and in fact in holding
that the respondent had not discriminated against the
appellant contrary to Section 3 of the Employment Equality
Act, 1977 in terms of Section 2 of that Act.

(2) The Equality Officer was wrong in law and in fact in failing
to award the appellant monetary compensation for loss of
earnings, distress and injury to feelings as a result of the
respondent's alleged discrimination against the appellant by
denying her employment.

(3) The Equality Officer was wrong in his interpretation of the
facts.

(4) The Equality Officer was wrong in law and in fact
in relation to the onus of proof and burden of proof.

(5) The Equality Officer was wrong in law and fact in the
findings of his recommendation which was not consistent with
the evidence presented.

(6) On all grounds that have been included in the Equality
Officer's investigation and on all further grounds that may
be included in the course of this appeal.

4. The Court heard the appeal on the 18th July, 1991. The
Agency's submission is attached as Appendix 2. The Company made
an oral submission at the hearing. A resume is attached as
Appendix 3. The Agency also expanded orally on its submission at
the hearing.

*DETERMINATION:
5. In the first instance the Court refers to Para 24 of Equality
Officers Recommendation No. EE31/1990 where he states inter alia
"that the evidence of the Claimant constitutes prima facie
evidence of discrimination i.e. evidence which is sufficient to
give rise to a presumption of discrimination if uncontradicted."
The Court agrees with this statement and accordingly the onus lies
with the Company to give a satisfactory explanation which would
show that discrimination did not occur.

The Court accepts that the standard of proof required in cases
such as this is the civil standard i.e. the "balance of
probabilities."

The Court further refers to Para 23 of the Equality Officer's
report where he refers to his lack of power to subpoena witnesses
and to the fact therefore that his conclusions and recommendation
must be recognised as being based on incomplete evidence.

The Employment Equality Agency representing the appellant
requested the Labour Court to exercise its powers pursuant to
Section 21 of the 1946 Industrial Relations Act and Section
21(2)(c) of the 1977 Employment Equality Act and to summons a Ms.
O'S to attend the hearing. This request was granted and Ms. O'S

attended the hearing on 18th July and gave evidence which will be
referred to further. The Court also endeavoured to summon a Mr. M
but failed to locate him. The Court therefore was without the
benefit of any direct evidence from him.

There was some difference in the facts presented to the Court and
to the Equality Officer. Allowing for the lapse in time this is
perhaps not surprising. However, one specific difference gives
rise to concern. Given that the alleged discrimination resulted
from a conversation between Ms. O'S and Mr. S and Ms. C it is
difficult to reconcile the differences in recollection.

(A) The Equality Officer's report states that two of the
parties agreed the conversation took place on the night
of 20th December, 1989. (Ms. O'S did not give evidence
to the Equality Officer).

(B) At the hearing all three parties to the conversation
i.e. Ms. O'S, Mr. S and Ms. C agreed that the
conversation took place on the morning of the 21st, Ms.
O'S recollection being that it took place while they
were loading the van; Mr. S and Ms. C while they were
driving on the way to Longwood.

Further differences between the parties emerged at the hearing.
Ms. O'S was adamant in direct evidence that she did not state that
the claimant was a troublemaker. She further referred to a beer
throwing incident, which she denied she had related to Mr. S and
Ms. C and said that she considered the claimant was within her
rights in relation to the episode. She had met the claimant only
once or twice socially. She admitted that she had stated that the
claimant was married.

Unfortunately the Court did not have direct evidence from Mr. M
However it was agreed that he was in the van at the time of the
discussion and could not have overheard the conversation at issue.

The Company submitted to the Equality Officer names of married
people who had worked with them over the past six years. They
submitted statements from two people confirming their marital
status to the Court. The Employment Equality Agency responded by
pointing out that there was no evidence to show that the Company
was aware of their married status when they were recruited.

The Court agrees with the Equality Officer that the questions
asked at the interview were not discriminatory and were reasonable
and necessary in the circumstances.

The Court finds the evidence of Ms. O'S to be more convincing than
that of the Company. In particular it notes that

(a) she denies ever telling Mr. S and Ms. C that the
claimant was troublesome.

(b) she confirms that she had informed them that the
claimant was married.

In conclusion the Court finds that the Company has failed to rebut
the presumption of discrimination and holds that the Company has
discriminated against the claimant contrary to the terms of the
Employment Equality Act of 1977.


Taking all the circumstances of the case into account the Court
further determines that the claimant should be compensated by the
Company for loss of earnings and the distress caused and awards
the sum of #450.

This award should be paid within one month of the date of this
Determination.

DETERMINATION:
The Determination in this case too long for the recommendation
field of the Database. It is held in the Document Field.
~



Signed on behalf of the Labour Court


27th September, 1991 Evelyn Owens
T.O'D / M.O'C. _______________
Deputy Chairman


APPENDICES




1. Employment Equality Officer's Recommendation


2. Employment Equality Agency submission.


3. Resum� of Respondent's submission.



APPENDIX I
EE31/1990
(File No. EE18/1990)

THE LABOUR COURT

EMPLOYMENT EQUALITY ACT, 1977

EQUALITY OFFICER'S RECOMMENDATION NO. EE31/1990

PARTIES: A COMPANY
(Represented by Mr. P. Finlay B.L. instructed by
James D. Aitken and Co., Solicitors)

and

A PROSPECTIVE FEMALE EMPLOYEE
(Represented by the Employment Equality Agency)


Dispute:
1. This dispute concerns an allegation by the Claimant that the
Company discriminated against her on the basis of her sex and/or
marital status when it withdrew an offer of employment which had
previously been made to her.


Background:
2. The Company is a small Company, usually comprising six to
eight people, which tours schools nationwide with productions of
plays currently on the school curriculum.

3. In response to an advertisement the Claimant, on 7th August,
1989, sent her curriculum vitae to the Company. The claimant was

called for two auditions on 14th and 22nd August, 1989. On 24th
August, 1989 she received a phone call from the Company
Administrator (hereinafter referred to as Ms. C.) and was told
that she and one other candidate were to be given a third and
final audition. Following the third audition the Claimant was
informed that she had not been successful.

4. In December, 1989 one of the cast informed the Company that
she was leaving. On 19th December, 1989 Ms. C phoned the
Claimant, informing her of this and asking if she would be
interested in taking the vacant place. The Claimant phoned back
the next day and indicated that she was available to take up the
position. Ms. C then asked the Claimant to call in to her to look
at scripts and to sign a contract. Ms. C. stated that a contract
was necessary as they had had difficulties with people dropping
out during a production. The Claimant agreed to call in the next
day, 21st December, 1989 at 7.15 p.m.

5. During the afternoon of 21st December, 1989 Ms. C phoned the
Claimant informing her that the person leaving the Company had
changed her mind and that, therefore, a vacancy no longer existed.

6. The Claimant alleges that the offer of employment was
withdrawn because the Company discovered she was married and,
therefore, felt she would be unavailable to travel around the
country. The Company states that the offer was withdrawn, not
because of her marital status, but because they considered, on the
basis of a report from another member of the Company, that she
would be troublesome and difficult to work with.

7. The Employment Equality Agency, on behalf of the Claimant,
referred the dispute to the Labour Court on 31st May, 1990 and the
Labour Court referred it to an Equality Officer for investigation
and recommendation. Details of the investigation are set out at
Appendix I. At the request of the parties, names of individuals
have not been specified in this recommendation.

CLAIMANT'S CASE:
8. The day after being told that a vacancy no longer existed,
the Claimant had a conversation with a Mr. M, an actor with the
Company. Mr. M informed the Claimant that the actress referred to
by Ms. C had not changed her mind about leaving and had in fact
left the Company.

9. The Claimant further submits that Mr. M told her of a
conversation involving a Ms. O'S, with Ms. C and Mr. S, the
Artistic Director, which conversation took place on the night of
20th December, 1989, the night before her offer of employment was
withdrawn. The Claimant claims that during that conversation Ms.
O'S told Ms. C and Mr. S that she, the Claimant, was married, to
which they replied "she's hardly likely to want to come down the
country with us then".

10. The Claimant requested Mr. M to attend the Equality Officer's
hearing as a witness. She states that while he agreed to allow
his name to be used at the hearing he refused to attend as a
witness. The Claimant submits that the fact that he authorised
his name to be used adds weight to her version of events.

11. The Claimant does not accept the Company's submission that it
withdrew the job offer on the basis of a report by Ms. O'S that
the Claimant was troublesome, as evidenced by the fact that she
once threw beer over someone at a party. She submits that a
second hand report of an incident at a party constitutes only a
flimsy excuse and cannot be the true basis for the withdrawal of
the offer of employment.

12. The Claimant submits that at her initial interview she was
asked a number of questions that seemed to be probing in relation
to her marital status, for example "Do you live at home"? or "Are
you living alone"? and "Who will get you up in the morning". She
submits that these questions support her allegation that marital

status was a relevant factor in the selection process and that the
offer of employment was withdrawn because the Company discovered
that she was married.


13. The Employment Equality Agency submits that a clear inference
can be drawn from their evidence that the withdrawal of the offer
of employment resulted from an assumption that because the
Claimant was married she would be unwilling to leave her husband
to work outside Dublin. It submits that this inference was not
been answered by the Company and that it must be concluded,
therefore, that the Claimant was discriminated against contrary to
the terms of the Act.

THE COMPANY'S CASE:
14. Ms. C states that the actual decision to recruit someone is a
joint decision involving herself and Mr. S, the Artistic Director.
Therefore, she informed Mr. S that she had invited the Claimant in
to sign contracts. This conversation took place in the presence
of Ms. O'S.

15. Ms. C and Mr. S claim that, on hearing that the Claimant was
to be appointed, Ms. O'S interrupted stating that in her view the
Claimant was not suitable as she was a troublemaker and was hard
to work with. Ms. O'S then cited the example of the Claimant
throwing a glass of beer over a person at a party.

16. Mr. S states that he took Ms. O'S's disclosure very
seriously. He pointed out that the Company was only a small group
who travel together and have to get on with each other. The
Company already had a problem in that one person had left. Mr. S
submits that the Company could not afford any further disruption
and that he felt that if there was a possibility that the Claimant
was troublesome the Company should not take the risk of employing

her. In order to avoid unnecessary embarrassment, the Claimant
was told that the situation was no longer vacant.

17. Ms. C and Mr. S deny that they made the alleged statement
that as she was married the Claimant would be unlikely to want to
travel down the country with them. The Company requested Ms. O'S
to attend the equality Officer's hearing as a witness but the
request was refused. As both Ms. C and Mr. S were present the
Company submits that their evidence of the conversation with Ms.
O'S is first hand and more likely to be correct than the
Claimant's version.

18. The Company accepts that during their conversation Ms. O'S
also informed Ms. C and Mr. S that the Claimant was married. It
submits, however, that the claimant's marital status was not
relevant to its decision to withdraw her offer of employment, and
that marital status is not a factor taken into account in the
selection of its employees. In support of this it provided a list
of nine married persons, including both males and females, all of
whom had worked with the Company at some stage between 1984 and
1989.

19. Mr. S submits that the questions asked by him at the initial
interview were normal questions asked of all interviewees. He
claims it was important for him to know if a person lived at home
as often a home address would be given where a person's flat had
no phone and this could cause difficulty in contacting that
person. It was also important to know that the person would be
able to get up and in to a meeting place for early morning starts.

20. The Company submits that its evidence rebuts the Claimant's
prima facie case of discrimination in that it describes the actual
reasons, not related to marital status, for the withdrawal of the
offer of employment. It claims that the Claimant has produced no
evidence in support of her allegation of discrimination.

CONCLUSIONS OF THE EQUALITY OFFICER:
21. It is a fact that an offer of employment was made to the
Claimant on 19th December, 1989, the offer was accepted by her on
20th December, 1989 and arrangements were made for her to call in
and sign a contract of employment on 21st December, 1989. It is
also a fact that on 21st December, 1989 the Company phoned the
Claimant and withdrew the offer of employment. The central
question to be resolved in this dispute is concerned with why the
offer of employment was withdrawn and whether or not the
withdrawal was a result of discrimination against the Claimant
contrary to the terms of the 1977 Act.

22. Both sides agree that the decision to withdraw the offer
resulted from a discussion on the night of 20th December, 1989
when a Ms. O'S proffered certain information regarding the
Claimant to Ms. C and Mr. S.

The Claimant, whose account is based on a report from a Mr. M, who
had spoken to Ms. O'S, claims that Ms. O'S informed Ms. C and Mr..
S that she was married and that they replied "She's hardly likely
to want to come down the country with us then".

The Company denies making this statement and claims that Ms. O'S
informed them that the Claimant was hard to work with and
troublesome. This led to them concluding that the Claimant was
unsuitable and the offer of employment was withdrawn.

23. I have investigated the circumstances surrounding the offer
of employment to the Claimant and the withdrawal of that offer,
with a view to deciding, on the balance of evidence, which version
is more convincing. However, in so doing I have encountered a
considerable difficulty in that both Ms. O'S (who could clarify
the nature of the information regarding the Claimant which she
provided to management) and Mr. M (whose report of a discussion
with Ms. O'S resulted in the Claimant's allegation of

discrimination) refused to attend the hearing and to give
evidence. As Equality Officers do not have powers of sub poena I
could not insist on the attendance of either of these witnesses to
give evidence. As a result of this my conclusions and
recommendation as set out below must be recognised as being based
on incomplete evidence.

24. The Claimant's case is that an offer of employment was made
and was withdrawn following the discovery by the Company that she
was married. The evidence has shown that the Claimant is correct
in that an offer of employment was made on 20th December, 1989,
that the Company did discover that she was married during a
conversation that night and that the offer was withdrawn the
following day. I consider that the evidence of the Claimant
constitutes prima facie evidence of discrimination i.e. evidence
which is sufficient to give rise to a presumption of
discrimination if uncontradicted. I consider, therefore, that an
onus lies with the Company to give an explanation showing that
discrimination did not occur. Failure by the Company to do so
will result in a finding that discrimination did take place.

25. During the investigation of this dispute, both Ms. C and Mr.
S gave evidence that the offer of employment to the Claimant was
withdrawn following a discussion with Ms. O'S, during which she
indicated that the Claimant was in her opinion hard to work with
and troublesome. The example of the Claimant throwing a glass of
beer over someone at a party was quoted and was not denied by the
Claimant.

26. I note the evidence of Mr. S that, as they were only a small
group and travelling together, it was important that everyone got
on. In these circumstances, the report of Ms. O'S that the
Claimant was hard to get on with and troublesome would have been a
cause of concern to Mr. S. I note the evidence of Mr. S that
on the basis of this report he concluded that he could not afford
to take the risk of recruiting the Claimant.

27. It is a fact that during the conversation with Ms. O'S, in
addition to the report that she was hard to work with, the Company
also became aware that the Claimant was married. I note that the
Company submitted names of nine people who have worked with them
over the past six years, all of whom were married. I consider
that this evidence favours the Company submission that it was
concern over the report of difficulty with the Claimant, rather
than her marital status, that resulted in the decision to withdraw
the offer of employment.

28. I have considered the allegation that discriminatory
questions were asked at the initial interview and I am satisfied
with the explanation of Mr. S that those questions were not
discriminatory, that they were asked of all candidates and that it
was necessary to ask them because of the nature of the work.

29. In all of these circumstances I consider the direct evidence
of the Company that the offer of employment was withdrawn because
of a fear that the Claimant would be troublesome, to be more
convincing than the inferences put forward by the Claimant that
marital status was probably the reason. I consider, therefore,
that there is insufficient evidence to support a finding of
discrimination in this case.

RECOMMENDATION:
30. In view of my conclusions in the paragraphs above, I find
that the Company did not discriminate against the Claimant
contrary to the terms of the Act when it withdrew an offer of
employment on 21st December, 1989.



__________________
Aidan Carrigan
Equality Officer
11th December,1990

APPENDIX I

DETAILS OF THE EQUALITY OFFICER'S INVESTIGATION

11 June, 1990 - The Labour Court referred the dispute to an
Equality Officer for investigation and
recommendation. The Equality Officer wrote
to the Employment Equality Agency requesting
a statement of the basis for its allegation
of discrimination contrary to the terms of
the Act.

18 July, 1990 - A written submission was forwarded by the
Employment Equality Agency and was forwarded
to the Company with a request for a
response.

4 September, 1990 - A written response was received from the
Company's solicitor and a copy was forwarded
to the Employment Equality Agency. A joint
hearing was arranged for 31 October, 1990
which date was the earliest date suitable to
all parties.

31 October, 1990 - A joint hearing was held at which both sides
commented on the issues raised in the
written submissions and made additional
verbal submissions.

13 November, 1990 - An additional written submission was
forwarded by the Employment Equality Agency
and was copied to the Company's solicitor.

21 November, 1990 - The Company's solicitor indicated that the
Company did not wish to make any further
submission.



APPENDIX II

EMPLOYMENT EQUALITY AGENCY'S SUBMISSION



Alleged discrimination on grounds of marital status

1. On 22nd December, 1989, the day after Ms. C's phone call
advising her that there was no longer a vacancy with the Company
the claimant attended a social function where she spoke with Mr.
M. Mr. M. is an actor who had just left the Company and is a
friend of Ms. McE. The claimant asked Mr. M why Ms. McE. had
changed her mind about leaving the Company. Mr. M. assured the
claimant that Ms. McE had not changed her mind about leaving and
had in fact left the Company. Ms. McE has confirmed in writing to
the Agency that she left the Company on 21st December, 1989 having
given notice of her intention to do so on 18th December, 1989.
(Details supplied to the Court).

2. The claimant further states that Mr. M also told her that a
conversation had taken place on the 21st December, 1989 in which
Ms. O'S, a member of the Company, had inadvertently mentioned to
Mr. S and Ms. C that the claimant was married. According to Mr. M
they replied that she was hardly likely, therefore, to want to
travel down the country with the Company.

3. Mr. M authorised his name to be used in the claimant's case
but declined to provide a statement or attend as a witness.

4. Ms. O'S claims that, in the course of a casual conversation
which took place while loading the Company's minibus, between Mr.
S, Ms. C and Ms. O'S she stated the claimant was married. She
states that she did not say the claimant was troublesome or
difficult to work with. Mr. S. then said "this puts a different
complexion on things".

5. After the claimant's conversation with Mr. M on 22nd
December, she was upset and angry and phoned Ms. C very late that
night. She spoke to Ms. C briefly and wrote to her the following
morning. (Details supplied to the Court).

6. On the 23rd December, the Company offered an eight week
contract to Ms. F. Ms. F had auditioned for a place with the
Company in August 1989 but had not qualified for a second round
audition. Ms. F subsequently turned down the offer of employment
from the Company. The vacancy was eventually filled by a Ms. H
who commenced employment with the Company shortly after Christmas
1989. The Court's attention is drawn to the fact that both Ms. F
and Ms. H are single.

7. The claimant alleges that all the facts of this case suggest
that the reason for withdrawing the offer of employment from her
was that she was married. The claimant alleges, therefore, that
the Company discriminated against her in relation to access to
employment on grounds of her marital status in contravention of
sections 3(1) and 3(3)(a) of the Employment Equality Act, 1977, in
terms of section 2(b) of that Act.


BURDEN OF PROOF/BALANCE OF PROBABILITIES
8. It is submitted that a prima facie case has been established
taking account of all the circumstances of the case, which is
sufficient to raise a strong inference of discrimination and to
shift the burden of proof onto the Company. The Court is asked to
note the following extracts on the subject of onus of proof. The
first is from Hennessy v Edel Quinn School (EE 5/87) at paras.
22-24:

"I consider that direct evidence of discrimination will
seldom be available to the person making the complaint and
that accordingly, in these cases the affirmative evidence of
discrimination will normally consist of inferences to be

drawn from the facts of the case. It is, therefore,
necessary for me, as a first step, to look at the totality of
the evidence in a case. Having looked at the evidence as a
whole and having established what are the facts of the
particular case, I must then decide if the facts indicate
that there has been an act of discrimination.

If the facts indicate that there has been an act of
discrimination, the employer is then called upon to give an
explanation. If the employer's explanation is inadequate or
untrue, I consider that an inference of unlawful
discrimination will succeed.

It is clear, therefore, that I consider it necessary, as a
first step, to establish the facts of the case before me.
Having done so, I must then interpret the facts... having
looked at the totality of the evidence I must address the
question of whether the balance of probabilities tips in
favour of the complainant's version of events or the
employer's version of events."

9. The Court's attention is also directed to Wallace v South
Eastern and Library Board (180) (N138), the following extract is
pertinent:

"Only rarely in cases under the Sex Discrimination Order,
will direct evidence be available of discrimination on the
grounds of sex; one is more often left to infer
discrimination from the circumstances. If this could not be
done, the object of the legislation would be largely
defeated, so long as the authority alleged to be guilty of
discrimination made no expressly discriminatory statements
and did not attempt to justify its actions by evidence.

... once the evidential burden has shifted, as it clearly did
in this case, the question then is whether there is any
evidence to justify the conclusion that the evidential
burden has been discharged by the respondent."

10. It is the Agency's view that the facts of the present case
raise an inference of discrimination which must be answered by the
Company. It is submitted that if this inference is not answered
adequately by the respondents, a reasonable person would conclude
that discrimination probably occurred. It is important to keep in
mind that the standard of proof is the civil standard, on the
balance of probabilities", and not the criminal standard, "beyond
a reasonable doubt".

11. The Court is further referred to the recent case of Dornan v
Belfast City Council, (1990) IRLR 179, in relation to the burden
of proof on the employer once an inference of discrimination has
been raised. The Northern Ireland Court of Appeal, following
Wallace and other authorities, stated:

"Once a prima facie case of discrimination has been made out,
the evidential burden is shifted to the employer to disprove
such discrimination by providing a clear and specific
explanation to the satisfaction of the Tribunal."

12. It is submitted that the facts of the present case place such
an 'evidential burden' on the respondents to provide a 'clear and
specific' explanation for their actions. It is further submitted
that this explanation must not, to use the words of the Equality
Officer, quoted at para. 8(11) above, be "inadequate or untrue".

13. The respondents have argued that during the conversation on
the 21st December 1989 (referred to at para. 2 above) Ms. O'S
stated to Mr. S and Ms. C not only that the claimant was married
but also stated that she was troublesome, as evidenced by the fact
that she allegedly once threw beer over someone at a party. This

story was neither accepted nor denied by the claimant at the
Equality Officer hearing because (i) the Equality Officer did not
ask the claimant to do so, and (ii) the story was so flimsy an
explanation for withdrawing the offer of employment that it
appeared not to warrant comment from the claimant. Consequently,
no comment was made other than to submit that the story was an
inadequate, and therefore unacceptable, explanation for
withdrawing an offer of employment.

14. It is submitted to the Court that the version of conversation
of 21st December, 1989 put forward by the respondents is not true.
Ms. O'S has denied the Company's statement that she alleged the
claimant was difficult to work with and troublesome. She did not
know the claimant well and had only met her once or twice at
social functions. Ms. O'S has stated that she witnessed the beer
throwing incident which occurred when the claimant was accosted in
a bar by a drunk. She denies relating this incident to Mr. S. and
Ms. C. Ms. O'S states that in her opinion the claimant was quite
justified in the action she took in view of the unwarranted
attentions of the drunken person. It is also submitted that the
explanation put forward by the respondents is inadequate and
unreasonable and should therefore be unacceptable to the Court as
a valid justification of the employer's action in withdrawing the
offer of employment to the claimant.

15. The claimant has worked with small theatre companies (and
with the same actors and actresses) in the past two years and has
not been regarded as being difficult or troublesome. The Company
should have investigated the incident more thoroughly rather than
taking action on one alleged subjective statement.

16. It is also submitted that the explanation put forward by the
respondents is inadequate and unreasonable and should therefore be
unacceptable to the Court as a valid justification of the
employer's action in withdrawing the offer of employment to the
claimant.

REMEDY
17. The Court is asked to find :

(i) that the Company discriminated against the claimant
contrary to sections 3(1) and 3(3)(a) of the
Employment Equality Act, 1977, within the meaning of
section 2(b) of that Act by not appointing her to a
position as an actress with the Company;

(ii) that the claimant be awarded monetary compensation for
the discrimination against her;

(iii) that she be awarded monetary compensation for the loss
of earnings she suffered as a result of her
non-appointment to the position in question; and

(iv) that she be awarded monetary compensation for the
distress caused by her non-appointment and also by her
having to take this complaint before an Equality
Officer and this Court.



APPENDIX III

Respondent's Submission



COMPANY'S ARGUMENTS:
1. In the course of a conversation between Mr. S, Ms. C. and Ms.
O'S, Mr. S stated that he had a person for the job and he and Ms.
C had invited the claimant to attend to sign a contract. Ms. O'S
mentioned that the claimant was troublesome and would not get on
well with the other members of the Company. Ms. O'S cited an
incident where the claimant threw beer over an actor in a pub.
She stated that the claimant was married. Ms. O'S had been with
the Company for two years and Mr. S and Ms. C respected her
opinion.

2. Mr. S and Ms. C who jointly are responsible for recruiting
actors and actresses took very seriously the disclosure of Ms.
O'S's that the claimant was troublesome. One person had already
left the Company and it could not afford further disruption.
The Company could not therefore take the risk of employing the
claimant. There were only a small number of people in the Company
and on a tour of venues around the country it was imperative that
members of the cast got on well together.

3. The Company denies that Ms. C. and Mr. S. made the alleged
statement that because the claimant was married she would be
unlikely to want to travel down the country. The Company accepts
that in the course of a conversation involving Ms. O'S., Ms. C.
and Mr. S., Ms. O'S. stated the the claimant was married. However,
the claimant's marital status was never a factor in influencing
the Company's decision to withdraw its offer of employment to her.
Marital status is not a factor taken into account by the Company
when selecting employees. The Company has over the past number of
years employed married people, both males and females. (Details
supplied to the Court).

4. The only background information which the Company requested
from the claimant at the first of three interviews related to her
address, as often a home address would be given where a person's
flat had no phone and there could be difficulty contacting the
person. It was important to know that the person would be able to
get to a meeting point for early morning starts.

5. A prima facie case has not been established that the Company
discriminated against the claimant on the grounds of her marital
status. The Company has outlined the reasons why its offer of
employment to the claimant was withdrawn.