FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : SUPERQUINN SUPERMARKETS LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MANDATE DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Appeal by the Union against Equality Officer's Recommendation No. EE3/97 concerning an allegation that Superquinn Supermarkets Limited discriminated against Mr. Michael Dempsey within the meaning of Section 2(a) and 2(b) and 2(c) of the Employment Equality Act, 1977 and in contravention of Section 3 of that Act, when during the course of a promotional interview, he was asked to shave off his beard and was questioned about his family circumstances.
BACKGROUND:
2. Mr. Dempsey has been employed by Superquinn Supermarkets in Sutton as a Sales Assistant since 31st April 1984. In November, 1995 he applied for a promotional post and his interview took place on 14th November, 1995. The claimant stated that, during the course of this interview, he was asked about his family circumstances and was told that he would be expected to shave off his beard.
The Union, on behalf of Mr. Dempsey, wrote to the Company expressing his dissatisfaction at the interview and requesting a meeting to attempt a resolution. The Union stated that as there was no progress with the Company, it referred the claim to the Labour Court in May, 1996. The Court subsequently referred the claim to an Equality Officer for investigation and recommendation.
On the 23rd January, 1997 the Equality Officer issued her recommendation as follows:
"I find that Superquinn Supermarkets Limited did ask Mr. Michael Dempsey discriminatory questions at the interview for a position as chargehand in the wine section of the Blanchardstown store constituting a breach of Section 2(a) and Section 2(b) of the Employment Equality Act 1977.
I note that the Company offered the position to candidates of the same sex and the same marital status as Mr. Dempsey. Therefore, I find that the Company did not discriminate against Mr. Dempsey in terms of his sex or his marital status by not appointing him to the position.
Accordingly, I recommend that Superquinn Supermarkets Limited pay Mr. Dempsey the sum of £750 in compensation for the distress suffered as a result of the discriminatory questions".
On the 24th February, 1997 the Union appealed the Equality Officer's recommendation to the Labour Court on the following grounds:
1. The Equality Officer erred in law and in fact in Section 5:9.
2. The Equality Officer erred in law and in fact in Section 6/6.1 paragraphs 2 and 3.
The Labour Court investigated the dispute on the 24th July, 1997. Both parties made written submissions (details supplied to the Court) and expanded orally on their submissions at the hearing.
DETERMINATION:
The Court examined all the evidence and submissions presented by the parties in the course of this appeal.
The Court finds no reason to alter the conclusion of the Equality Officer that certain questions were put to the claimant at interview which would not have been put to a single person of the same sex. In that respect, the claimant was treated less favourably than a notional single male candidate for the job.
However, such discrimination cannot be shown to have affected the ultimate choice of candidate for the job, since all candidates were of the same sex and of the same marital status as the claimant.
It does not follow that such discrimination as might have occurred at the interview entitles the person who suffered the discrimination to the position. Rather it entitles him to redress for the discrimination as far as it went - and that relates to the asking of the questions and no more.
The Court notes that the Company accepts the Recommendation of the Equality Officer, of an award of £750 compensation.
In relation to the appointment of the second candidate the Court also upholds the Equality Officer's findings.
The Court finds that there was no discrimination in relation to the appointment itself and upholds the Equality Officer's Recommendation.
Signed on behalf of the Labour Court
Finbarr Flood
3rd September, 1997______________________
T.O'D./S.G.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.