FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : IRISH FERRIES LIMITED - AND - MS SANDRA DEMPSEY DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Recommendation EE1/98.
BACKGROUND:
2. The claimant, Ms. Sandra Dempsey, and a second worker were employed in a temporary capacity in the Credit Control Department of Irish Ferries. Both workers were informed that their employment would end on the 25th of October, 1996.
On the 18th of October, 1996, Ms. Dempsey was recommended by the Credit Control Manger in Irish Ferries for a permanent job in Hammond Lane. She met a director of Hammond Lane and, following a visit to the Company on the afternoon of October 18th, she accepted the position. The second worker was put forward for a position (temporary) in Eucon Limited, an associated company of Irish Ferries. He was successful in getting the position.
Ms. Dempsey's claim is that she was discriminated against on the grounds of her sex. She claims that she spoke to the Credit Control Manager on the morning of the 18th of October and he confirmed that the second worker had been offered the position in Eucon Limited. When she asked for an interview for the position she was told that she would not be granted one as the manager in Eucon"wanted a man for the job and this was his prerogative." The claimant also believes that the Credit Control Manager spoke to the second worker about the position in Eucon on the previous day (17th of October). The Company denies that any discrimination took place, pointing out that the vacant position in Eucon had previously been filled by a female. The Company also believed that the job in Hammond Lane was better for the claimant as it was permanent. (The full background of the case can be found in the Equality Officer's Recommendation No. EE1/98). Ms. Dempsey began working with Hammond Lane on the 28th of October, 1996, but left shortly afterwards as she found the work unsuitable.
The claimant referred a claim of discrimination under Sections 2(a), 2(b) and 2(c) of the Employment Equality Act, 1977 to the Labour Court. The Labour Court referred her case to an Equality Officer for investigation and recommendation. At the investigation on the 5th of November, 1997, the claimant withdrew her claim under Section 2(b) of the 1977 Act. In her Recommendation, the Equality Officer found that the Company did not discriminate against the claimant.
On the 23rd of February, 1998, the claimant appealed against the Equality Officer's Recommendation to the Labour Court. The Court heard the appeal on the 15th of September, 1998. Both parties made written and oral submissions at the hearing.
DETERMINATION:
The claimant made a complaint to the Court pursuant to the provisions of Sections 2(a), 2(c)and Section 3 of the Employment Equality Act 1977 (the Act) in relation to access to employment with an associated company of the respondent. In substance, her case is that on the termination of her contract with the respondent, a vacancy arose in an associated company which the respondent was asked to fill. She complains that the respondent directed a male employee to the associated company (Eucon) in preference to her, and that she was denied an opportunity to apply for this position because of her sex.
The Equality Officer found that the claimant had not been discriminated against. It is against that recommendation that the complainant has appealed to the Court.
Both parties made written submissions to the Court. The Court also took sworn evidence from the claimant, and from a number of witnesses who appeared for the Company. There were significant differences in recollection between the claimant and the witnesses for the respondent on a number of crucial points.
It is the claimant’s case that some time prior to her meeting with the Credit Control Manager on the morning of 18th October, 1996, her male colleague had been referred for interview to an associated company. She says that on enquiring as to why she had not been similarly referred, her Manager told her that the Manager of the associated company wanted a man for the job. The claimant was then referred to another unconnected company for a clerical position which had become vacant.
The claimant’s recollection as to the sequence of events was contradicted by witnesses who gave evidence for the respondent. Crucially, they say that the vacancy at the associated company was notified to the claimant’s Manager after the time at which he met with the claimant. This evidence, if accepted, would support the respondent’s case that the reason why the claimant was not given an opportunity to apply for the disputed vacancy was because she had already been offered a permanent job with another company.
The Manager of the associated company emphatically denied having any preference for a male candidate for the vacant position or saying anything to the claimant’s Manager which could be so construed. Moreover, it was pointed out, and accepted by the claimant, that the disputed vacancy arose from the resignation of a female member of staff and was subsequently filled in an acting capacity by another woman. It was also pointed out that the company in question employs a mix of male and female clerical workers. On that basis, it is difficult to envisage any rational explanation as to why the Company would wish to exclude the claimant by reason of her sex.
The Credit Control Manager denied having told the claimant at the meeting of 18th October that the associated company wanted a man for the vacant job. He also confirmed that no such preference had been indicated to him by the Manager of the associated company. He did, however, accept that in the course of what he described as an off the record conversation with the claimant in the following week, he did make a casual remark which could have been interpreted as meaning that a man was preferred for the job. He was, however, emphatic that no basis existed for this comment, and in particular nothing had been said by the Manager of the associated company which could have lead him to that belief.
The Court accepts that all witnesses, including the claimant, gave honest evidence to the best of their recollection. It is, however, for the claimant to establish, on the balance of probabilities, that the reason she was not offered employment with the associated company was on grounds of her sex. While the matter is not entirely without doubt, the Court finds that the claimant has not discharged that onus.
It is the determination of the Court that the Recommendation of the Equality Officer be affirmed and the appeal dismissed.
Signed on behalf of the Labour Court
Kevin Duffy
2nd October, 1998______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.