FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : GRAHAM ANTHONY & COMPANY LIMITED (REPRESENTED BY DENIS MCSWEENEY SOLICITORS) - AND - MARY MARGETTS (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against the Decision of the Director of Equality Investigations (ODEI)
Dec-E2002-050.
BACKGROUND:
2. The background to this case is set out in Equality Officer's Decision No. DEC-E2002-050 which was issued in November, 2002. The Equality Officer decided that the Company did not discriminate against the appellant on the grounds of marital status, family status and age, contrary to the provisions of the Employment Equality Act, 1998 (the Act), when she was offered part-time employment instead of the full-time employment which she had sought.
On the 19th December, 2002 the Union appealed the Decision to the Labour Court on the grounds that the Equality Officer erred in law and in fact in her Decision.
The Court heard the appeal on the 2nd May, 2003.
DETERMINATION:
This is an appeal by the Union against Equality Officer Decision DEC-E2002-050 in which the Equality Officer found that the company had not discriminated against Ms. Margetts on the basis of her marital status, family status and age, when she was offered part time employment instead of full time employment at an interview in September 2000.
The Union appealed the Equality Officer’s decision on the grounds that the Equality Officer has erred in fact and in law. No further details were forthcoming.
Complainant’s Case
Ms. Margetts is separated and has two teenage children. She is a qualified beauty therapist and operated her own beauty salon for five years between 1993 and 1998. She subsequently worked for four months in a retail store on the beauty counter.
In early September 2000, Ms. Margetts applied for an advertised position for counter staff for a range of skin care products, which were being launched by the respondents in a Galway department store. She was called for interview. During the interview Ms. Margetts told Mr. Quinn, the managing director, that she was seeking full time work, but indicated that she would accept part time work on the basis that it may eventually lead to full time work. She said that Mr. Quinn asked her if she was married and if she had children. She indicated that she was separated and had two teenage children but that as she had worked full time for four months in her last employment that it would not be a problem.
The same day Ms. Margetts was offered a twelve-hour week. Two other candidates interviewed that day were offered employment. One was offered a twenty-hour week and the second was offered the position as counter manager on a thirty-nine hour week. Both of these were single and did not have family responsibilities as defined by the 1998 Act, and both were younger than the complainant.
Ms. Margetts commenced employment on 16th September 2000. On 4th December 2000 she was dismissed, which dismissal was referred to the Labour Court under Section 77 of the 1998 Act. The Court reserved its judgement on the dismissal pending the completion of this claim.
The Union claims that Ms. Margetts was denied access to one of the full time positions on the basis of her marital status, family status and her age and that there was no justifiable reason why she should be asked questions at an interview about her marital and family status. She claims that the offer of part time employment constituted less favourable treatment by the employer.
Respondent’s Case
The company is a wholesale distribution company for beauty products. In September 2000 it intended to launch a new skincare range in a Galway department store. Accordingly, the company sought to recruit counter staff to promote and sell this product over the counter at the store. In order to ensure adequate cover, the number of staff required and hours each would work, was decided at head office.
On 8th September 2000, the managing director carried out the interviews alone and assessed each candidate with particular regard to their relevant experience. Mr. Quinn explained that any person selected for the counter manager position must have extensive experience in cosmetics and in managing staff. The person offered the twenty hours per week position had extensive experience in make-up and consultation. While Ms. Margetts had run her own business for six years (1993 – 1998) her experience was in beauty therapy and professional treatments and not in retail sales. As the candidate who had been out of the workplace for some time and as the candidate with less experience, she was offered the shorter hours.
The respondent submitted that the complainant had volunteered the information in her curriculum vitae that she had two children. The reason why the issue of her marital and family status was raised was due to the two-year gap in her curriculum vitae, when he asked her why her business had ceased. She answered that she had separated and was raising two children.
The respondent denied that it had discriminated against the complainant on any of the three grounds cited, or at all.
The Facts as Presented at the Hearing
The complainant submitted the following facts to show that discrimination took place:
- comments written by the managing director, in the complainant’s curriculum vitae “2 children, 16 and 13”
- there was no two year gap in her employment history as alleged
- there was no reference to the employer being an equal opportunity employer
- the complainant has worked full time previously.
The employer indicated to the Court that the handwritten reference to the complainant’s two children on the curriculum vitae was volunteered by Ms. Margetts when she was asked about the closure of her beauty salon business and the gap in her employment history. She also volunteered the information about her marital status at this time. The complainant submitted that she was asked a specific question about her marital and family status. The Court accepts the respondent's evidence that the interviewer was aware of her family status prior to setting up the interview and accepts that he indicated to her that he was in the same circumstances himself when reference was made to her marital status.
The Burden of Proof
The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show on the balance of probabilities that it did not discriminate against the appellant. The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.
Conclusion:
The Court is satisfied that the contentions advanced by the complainant to support her claim of discrimination are not sufficient in themselves to establish a prima facie case and therefore switch the burden of proof to the respondent. The Court is satisfied that no evidence was presented to substantiate the allegation that the company had treated the complainant less favourable due to her marital status, her family status or her age. Since the complainant has failed to establish a prima facie case of discrimination her claim must fail.
It is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the marital status, family status or the age of the complainant influenced the decision of the employer. The Court accepts that as the candidate with less experience coupled with the fact that (with the exception of a four-month period in 1999) she had not been in employment since 1998, of the three successful candidates selected, she was offered the shortest hours.
Determination
The Court determines that the complainant was not discriminated against within the meaning of Section 6 (2) of The Employment Equality Act, 1998 and in contravention of Sections 6(1) and 8 (1) of that Act, in the manner in which the company offered her terms of employment.
The Court disallows the Union’s appeal and upholds the Equality Officer’s decision.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th August, 2003______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.