EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 06/1996
PARTIES
Ms. Anna Maguire
{Represented by S.I.P.T.U.}
and
Forte Ireland Limited
{Represented by I.B.E.C.}
File No. EE 14/95
1. Dispute
1.1 This dispute concerns a claim by Ms. Anna Maguire that
Forte Ireland Limited discriminated against her on the
grounds of sex in terms of Section 2(a) of the
Employment Equality Act, 1977 and in breach of Section
3(1) of the Act in the manner in which a male casual
employee was appointed to fill a permanent 24 hour week
position.
2. Background
2.1 Ms. Maguire has been employed for some seven years, on a
casual capacity, by Forte Ireland Limited in its hotel
at Dublin Airport. In September 1994 the Company
advertised two permanent positions in the kitchen area
one with a 39 hour working week and the other with a 24
hour working week. It received applications from both
internal and external candidates.
3 The Claimant's Case
3.1 The claimant submits that she was discriminated against
by the Company on grounds of her sex in terms of Section
2(a) of the Employment Equality Act, 1977 and in breach
of Section 3(1) of the Act in the manner in which a male
2.2 The claimant unsuccessfully applied for the 24 hour
working week position. The Company offered the position
to a male who worked in a casual capacity in the hotel.
Ms. Maguire contends that the Employer unlawfully
discriminated against her in that the appointee had less
experience/qualifications than her and that he did not
apply for the position in question.
2.3 In April, 1995, Ms. Maguire through her Union referred
the dispute to the Labour Court. The Labour Court
referred the case to an Equality Officer for
investigation and recommendation. In the course of the
Equality Officer's investigation he received written
submissions from the parties. After receipt of the
submissions a joint hearing with the parties was held on
the 17th January, 1996.
casual employee was appointed to fill a vacant permanent
24 hour week position.
3.2 Section 2(a) deals with direct discrimination and it
states that discrimination shall be taken to occur:-
"where by reason of his sex a person is treated
less favourably that a person of the other sex."
Section 3(1) states that an employer:-
"shall not discriminate against an employee or a
prospective employee ........ in relation to
......... employment, promotion ......."
3.3 The Union accepts that the vacancy notice, which was
included in the Company's submission, is a copy of the
notice put on display but it points out that there is no
such designation as that of Kitchen Assistant, as
appears in the notice, in the industry. A copy of the
notice is at Appendix 1. It advises that everybody in
the hotel knew that the 24 hour job to be a Stillroom
Assistant position and the 39 hour a Kitchen Porter
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position. The Union argues that the duties of the 24
hour position is as outlined on the Appraisal form
(scope of work) in respect of the claimant and the
duties of the other position are those as outlined in
the finer print (scope of employment), on the Appraisal
form in respect of the appointee. Copies of these
Appraisals forms, together with one in respect of the
other male candidate for the 24 hour position, are
included in Appendix 2.
3.4 The Union states that the Employer invited applications
in respect of a 39 hour week position and/or a 24 hour
week position which jobs the Union describes
respectively as Kitchen Porter and Catering Assistant.
It further states that the Company, subsequent to
carrying out interviews, filled the Kitchen Porter's job
through the appointment of an external candidate and
filled the Catering Assistant position through the
appointment of a casual male employee, who did not apply
for it.
3.5 The claimant points out that she was interviewed on two
occasions in respect of the 24 hour position. She
states that at the time the positions were advertised
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she had been employed for some seven years by Forte
Crest on a casual basis covering the wash-up area. She
asserts that she had been undertaking the 24 hour
position, in the absence of the holder on sick leave,
for some eight to ten months prior to the vacancy been
advertised.
3.6 Subsequent to the second interview, the claimant alleges
that she was informed by Mr G. Hughes, the Second Head
Chef, who had been one of the interviewers, that she was
the best applicant for the job. She adds that Mr Hughes
congratulated on her getting the job. On the 10th
November, she points out that she received a letter from
the Personnel Manager that "we have offered the twenty
four hour position to one of the internal candidates", a
copy of this letter is at Appendix 3.
3.7 At a meeting, which took place on the 2nd December 1994,
between the claimant's Union and the Personnel Manager
in relation to the 24 hour job appointment, the Union
representative contends that it emerged that the male
appointee had not applied for the position. The Union
submits that it learned at this meeting that the male
appointee "whilst been interviewed for the position of
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Kitchen Porter had been invited by management during the
interview to apply for the position as Catering
Assistant should he be unsuccessful in his application
for the Kitchen Porter's position".
3.8 The Union describes as unprecedented that an applicant
for a particular position is asked, after a competition
closing date, if he is interested in another position
which he expressed no interest in. The Union contends
that the appointee was imported into the interview
system with the intent to extend the hours/duties of the
24 hour position outside the Union agreement. It
further alleges that the appointee stated to the
claimant that he would be looked after hours wise. The
Union argues that the preference of the appointee was
wholly and exclusively gender related.
3.9 The Union alleges that at the 2nd of December 1994
meeting, the Company acknowledged that the appointee to
the 24 hour position was not successful for the Kitchen
Porter's job because of concerns about his timekeeping.
It further alleges that the Company at this meeting
acknowledged that both the appointee and Ms. Maguire
were neck and neck as candidates for the position of
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Catering Assistant (24 hour week) and that if he proved
unsuccessful Ms. Maguire would be put into the position
on a trail basis.
3.10 The Union submits that the Company accepted at the
December 1994 meeting that it had raised on previous
occasions difficulties associated with the wash up area,
in that, it had sought additional resources to be
assigned to this area because of stated problems. The
Union further submits that at the same meeting it
"alleged to the Company that they were moving the
kitchen porter and wash up positions on an integrated
strategy and as such had excluded the most successful
applicant for the job which was Ms. Anna Maguire."
3.11 Ms. Maguire's service of seven years with the Company as
a casual employee in the wash up area, the Union
believes, equipped her, both in experience and
qualifications, to fill the advertised position ahead of
the appointee who had been employed for no more than
three years in a casual capacity in a different job that
of Kitchen Porter. It further believes that the
impediment to his appointment in the kitchen portering
area for which he was an applicant and the favourable
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consideration extended to him for the Catering Assistant
(24 hour week) position for which he was not an
applicant is prima facie evidence of discriminatory
treatment.
4 The Respondent's Case
4.1 The Company rejects the allegation that it exercised
unlawful discrimination against Ms. Maguire in relation
to the 24 hour position. It denies that the Sous Chef,
Mr. G. Hughes informed Ms. Maguire that she had got the
job. The respondent submits that all internal
candidates including Ms. Maguire were offered the same
opportunity of being considered for either or both
positions and that it was fair in its procedures and
decision to select the two candidates it put on trail.
4.2 Mr. Uzice, the Personnel and Training Manager, advises
that Ms. Maguire's job has never changed over the last 7
years. He takes issue with the Union's contention that
Ms. Maguire replaced the 24 hour job holder when she
went sick. He submits that the 24 hours were
distributed among the kitchen casual employees,
10
including the claimant.
4.3 There were ten applications, the Company explains, for
the two positions four of whom were internal candidates,
two
male and two female. Mr. Uzice states, as is the usual
practice, he meet and screened the candidates and as a
consequence he eliminated some of the external
candidates but he allowed all four internal candidates
the same opportunity to an interview. He adds that he
saw each internal candidate for 15-20 minutes and
explained to them the requirements for the two positions
and that the positions were not the same jobs as those
that had been in place.
4.4 The Personnel Manager states that all candidates were
given the opportunity to apply for one or both positions
and those internal candidates who applied for either the
39 hour position or the 24 hour position were offered
the option of being considered for both positions. He
explains that at the screening interviews he gave this
option to the internal candidates on the basis that if a
candidate was unsuccessful for one position s/he could
possibly succeed in the other. He recalls that he asked
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Ms. Maguire if she would like to be considered for the
39 hour position and she said no, she was therefore
considered solely for the 24 hour position. He adds
that the person who was appointed to the job in question
took up the option, which he gave him, to be considered
for it.
4.5 The candidates were interviewed by Mr. David Hall, the
Head Chef and Mr. Hughes, the Sous Chef. The Personnel
Manager states that he briefed the two chefs on all the
applicants before they were formally interviewed and
that they informed him on their appraisal of each of the
candidates. He adds that he, the two Chefs and the
General Manager considered one external candidate with a
very good record and a reference, from an hotel within
the group, for the 39 hour position and they decided on
an internal male candidate for the 24 hour position.
4.6 Mr. Hughes rejects the claimant's statement that he
informed her that she got the job. He states that the
claimant approached him on the day she received the
letter dated the 10th November '94 and asked to speak to
him in the office, wherein she expressed her
dissatisfaction at not getting the position. Mr Hughes
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adds that he informed her it was not his place to let
members of the staff know whether or not they got a job.
4.7 The Company submits that the requirements for the job,
which were the criteria applied to assess all the
candidates, in relation to the two vacancies, were as
follows :
1. Good hygiene practices
2. Good work standard
3. Attitude to supervision
4. Attitude to work
5. Time keeping
6. Conformance to regulations
Copies of the written appraisals, in respect of the
claimant and the two male internal candidates, which Mr
Hall states he completed after the candidates had been
interviewed by him and Mr. Hughes are at Appendix 2.
4.8 The Personnel Manager points out that the appointee to
the 24 hour position was the best internal candidate for
the 39 hour position but that the only consideration not
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to offer him that position was his timekeeping. The
Company acknowledges that the appointee to the 24 hour
position was the best internal candidate despite his
timekeeping. In relation to Ms. Maguire the respondent
points out that while she has been with the hotel for
some seven years, she had a problem with the job
requirement. Mr Uzice asserts that she advised him that
a 7 a.m. start was not possible for her. The two chefs
also assert that the difficulty she had with a 7 a.m.
start arose at her interview. The Personnel Manager
states that the claimant was regarded as similar to the
male internal candidate who was unsuccessful.
4.9 The Company contends that it made it clear to the Union
and staff that vacancies would be filled with the best
candidate for the job and not on the basis of length of
casual service with the hotel. It further contends that
it strives to give equal opportunity to all staff. The
Company believes that it was fair in its procedures and
decision to select the two candidates it did in the
present case.
5. The Conclusions of the Equality Officer
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5.1 It is a fact that in making an allegation of
discrimination it is difficult for the person making the
allegation to produce direct evidence to support his/her
contention that discrimination was practised against
him/her. Consequently, as direct evidence will seldom
be available to a claimant, it is necessary, in
investigating a dispute of alleged discrimination under
the Act, to examine the totality of the evidence to
establish the facts of the case and then to consider if
those facts consist of inferences of unlawful
discrimination.
5.2 The Union's case in essence is that Company in offering
the job to the appointee, a person who had not applied
for the position and who had less service and experience
in the wash up area than Ms. Maguire treated him more
favourably than her on the grounds of his gender and in
the process discriminated against Ms. Maguire because of
her sex contrary to terms of the Employed Equality Act,
1977.
5.3 The Company denies that it exercised unlawful
discrimination against the claimant. It contends that
the Personnel Manager, at screening interviews, gave all
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the internal candidates for one or other of the two
positions the opportunity to apply for both positions.
It further contends that all the candidates were
assessed under the same criteria and as the job in
question is not a demanding one experience is not
relevant.
5.4 Having considered the totality of the evidence in this
case, I am satisfied that the first issue I must
consider is whether or not the Company in considering
the male, who was appointed to the 24 hour position, as
a candidate for that position, acted in such a manner as
to indicate, as the claimant alleges, prima facie
evidence of unlawful discrimination. After I have
addressed that issue, I will then consider the
submissions made by the parties, both written and oral,
and all the available evidence in relation to the
Union's claim that the Company made its selection on the
basis of sex and thereby unlawfully discriminated
against Ms. Maguire.
5.5 I note the Company submits that two male and two female
employees of the hotel responded to the vacancy notice
and that the male, who did not get a position, applied
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initially for both positions. It seems to me that in
order for the Union's allegation that the male appointee
was "imported", into the interview system in regard to
the 24 hour job for reasons of sex, the evidence
available would have to establish that the claimant was
not given the same opportunity as him to be considered
for both positions. I note that the claimant accepts
that she did not take up the opportunity given to her by
Mr. Uzice, the Personnel Manager, at her "first
interview", to be considered for the position that she
had not formally applied for. It is therefore a fact
that she was given the same opportunity as that afforded
to the male appointee. Accordingly, I cannot hold that
the facts surrounding the Company's consideration of the
male, who was eventually appointed to the 24 hour job,
for both positions do not support the Union's contention
of prima facie evidence of unlawful discrimination.
5.6 The Union argues that the claimant was the best
candidate for the 24 hour position because:
of her seven years casual service as apposed to the
appointee's three and a half years casual service
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of her experience and qualification gained over
those years
she filled the advertised position for eight to ten
months before it was advertised
the appointee's service was in the area of kitchen
portering, the 39 hour job
the impediment of timekeeping for the 39 hour
position is in contrast to it not being considered
unfavourably to the same person's appointment to
the 24 hour job
I note that the Company submits that it applied the same
criteria in the assessment of all the candidates and
that the candidate selected for the job in question was
considered to be the best internal candidate.
5.7 The claimant, the Union contends, was superior to the
appointee in the areas of relevant experience and skill.
I note that the Company does not accept that the
claimant substituted for the holder of the 24 hour job
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in the period up to it was advertised and it plays down
the importance of experience for a position it describes
as a simple job. It appears to me, on the evidence
available, that the company did not make its selection
on the basis of experience or skill, instead it made the
decision to assess the candidates, under six different
headings, in a interview process.
5.8 It is not, in my view, an Equality Officer's function to
set the criteria for a Company to make appointments or
to consider whether or not a Company adopts the best
method to make appointments, it is rather his/her
function to examine the criteria used and then decide
whether or not the requirements set for a position are
free from a sex bias and that the criteria set is
applied, in the context of Equality legislation, in a
non discriminatory manner.
5.9 The Company submits that the criteria applied to assess
all the candidates were as follows:
1. Good hygiene practices
2. Good work standard
3. Attitude to supervision
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4. Attitude to work
5. Time keeping
6. Conformance to regulations
At the joint hearing held the Company informed me that
it did not operate a marking system in relation to the
second interviews, which were conducted by Chefs Mr. D.
Hall and Mr. G. Hughes. I was also informed at the
joint hearing that while notes were taken at these
interviews they were subsequently discarded.
5.10 In the course of my investigation I received appraisal
forms from the Company in respect of those considered
for the 24 hour position. I have erased the names from
the forms in respect of the two males considered and I
have instead given the appointee the title Mr. A. and
called the other male candidate Mr. B., these forms
including the one completed in relation to the claimant
are at Appendix 2.
5.11 I have examined the Appraisal forms and I find nothing
in them to infer, either under the headings used or the
comments therein, a sex bias.
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As I interpret the Appraisal forms, the interviewers are
positive on Mr. A. under five of the six headings,
positive under two headings in relation to Mr. B. and
positive in regard to the claimant under one heading. I
note that under the heading of "Time Keeping" the
Company is negative on Mr. A. and this is one of the
headings in which it is positive on Mr. B and it is the
only heading in which it is positive on the claimant.
While it appears to me from my examination of the
Appraisal forms that overall the Company is somewhat
negative on Mr.B. and the claimant, it is more positive
in regard to Mr. B. than the claimant. Notwithstanding
that the Company appears to be more positive in regard
to Mr. B. than the claimant both were treated in the
same manner in that neither of them were considered the
best candidate for the 24 hour position. Accordingly, I
am of the view that the Appraisal forms do not infer a
discriminatory attitude by the respondent towards the
claimant.
5.12 I note that the Union argues the Company's treatment of
Mr. A. in not selecting him for the 39 hour position
because of his timekeeping is in contrast to the
favourable consideration extended to him in regard to
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the 24 hour job. In regard to this issue I note that
the respondent describes Mr. A. not as the best overall
candidate but as the best internal candidate and that it
was an external applicant who was selected for the 39
hour position. I further note that at the joint hearing
the Company stated that the candidates for the 24 hour
position were all internal candidates. It therefore
follows that the evidence available would have to
establish that the claimant was either equal to or
better than Mr. A. under the criteria applied by the
respondent to infer unlawful discrimination. In the
previous paragraph I addressed the question of the
Company's assessment of the two male applicants and the
claimant and I formed the view that there is no evidence
of a sex bias against the claimant.
It may be useful to state that both the claimant and Mr.
B. were affected in the same way by the Company's
decision not to give the full-time position to Mr. A.
because of its misgivings on his timekeeping. I am
therefore re-enforced in the view that there is no
inference of discrimination against the claimant because
Mr. A.'s timekeeping went against him in relation to the
39 hour position.
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5.13 The Union raises a number of other issues which it
considers important to its case of unlawful
discrimination and these include:
the Company did not receive the Union's agreement
prior to the two positions being advertised
the claimant, as is her right, worked within the
terms of the Union/Management agreement
the Union advises its members not to work contrary
to its agreement
the explanations given by the Company, at a meeting
in December 1994, for the claimant's failure to get
the position were essentially matters that arose on
previous occasions
the appointee was imported into the interview
system in order to extend the duties/hours of the
24 hour position
It seems to me that the issues raised are matters which
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properly fall within the area of industrial relations
and as such are not matters that come within the scope
of equality legislation, unless it is established that
they have a sex bias attached to them. The evidence
available to me does not infer that these issues
infringe on equality law.
5.14 I note that Mr. Hughes, at the joint hearing, denied Ms.
Maguire's allegation that he had informed her that she
was the best applicant and that she had been selected
for the job. It seems to me that the appraisals of the
candidates, as appear in the Appraisal forms completed
after the interviews, do not indicate that the claimant
was better or equal to the appointee. It also seems to
me that the claimant could not regard the appointment
situation a fact until after she was informed of the
position by the person with that responsibility. In my
view in matters related to the personnel area this task
would not fall on the second Head Chef.
5.15 In summary, I have found that there was no inference of
discrimination attached to the Company's consideration
of Mr. A. for the 24 hour position. I have also found
that the selection of Mr. A. to the 24 hour position was
24
not made on the basis of his sex. Accordingly, I hold
that the Company did not discriminate against Ms. Anna
Maguire in contravention of Section 2(a) of the
Employment Act, 1977.
Recommendation
6.1 In view of my conclusions in the preceding paragraphs, I
find that Forte Ireland Limited did not discriminate
against Ms. Anna Maguire contrary to the provisions of
the Employment Equality Act, 1977.
__________________________
Jim Clerkin,
Equality Officer,
6th March, 1996.
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