FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : ARZAC DEVELOPMENTS LIMITED (REPRESENTED BY BEAUCHAMPS SOLICITORS) - AND - DEBORAH COSTELLO (REPRESENTED BY MARY BRUNEL) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 - Dec-E2003-048.
BACKGROUND:
2.
The Labour Court investigated the above matter on the 30th March, 2004 and the 1st July, 2004. The Court's determination is as follows:
DETERMINATION:
Background:
Ms. Deborah Costello (the complainant) registered with an employment agency, Teamworx Retail Recruitment Ltd, seeking a position in the fashion industry. Her C.V. was forwarded by the agency to Arzac Developments Limited, (hereafter known as Pamela Scott), a Dublin fashion shop (the respondent). Having attended a first interview she was invited back for a second interview. This was to be held at 9:30am on Friday 22nd November 2002. However, this second interview was cancelled at short notice after the complainant had told an executive of the agency that she was pregnant. The interview was not subsequently rearranged.
The complainant referred a complaint under the Employment Equality Act, 1998 to the Director of Equality Investigations. Her complaint was investigated by an Equality Officer who found that she had been discriminated against on grounds of her gender when the employer cancelled the second interview because of her pregnancy. The Equality Officer awarded the complainant compensation in the amount of €7000. It is against that decision that the respondent appealed to this Court.
Position of the Parties:
It is the respondent’s case that the second interview was cancelled because the Director of the respondent had to attend an urgent meeting in Waterford on the date on which the interview had been arranged. They further contend that a decision was subsequently taken to alter the management structures within the store thus eliminating the need for the position in question.
Evidence of Mr John Barron:
Mr John Barron who is a Director of the respondents gave evidence before the Court. He told the Court that each floor in the Grafton Street store was separately managed. On or about October / November 2002 the ground floor manager resigned and the Company sought a replacement. For this purpose they engaged Teamworx Retail Recruitment Agency. Mr Barron said it was normal practice to interview candidates twice and that he would only become involved at the second interview. He understood that a first round of interviews had taken place and his understanding was that two candidates were being sent forward for a second interview. This second interview was to have been conducted on the morning of the 22nd November 2002. Mr Barron told the Court that around lunchtime on the 21st November he received a phone call from an architect who was involved with the construction of a new store for the Company in Waterford who informed him of difficulties on this site. Since the store was shortly due to open for the Christmas trade he decided to go to Waterford the following morning to deal with the problem. He asked Ms Catrina McCartney, who is a manager with the respondents, to cancel the interviews scheduled for the following day. He claimed this was the only reason for the cancellation of the complainant’s interview. The interview with the other candidate was also cancelled.
Subsequently, it was decided to restructure the management functions in the store and to have an overall manager covering the entire store. Within these arrangements the post for which the complainant had applied would cease to exist. It was for this reason that the Company decided against rescheduling the interviews. There was some delay in putting this new management structure into place and it was in early 2004 before the restructuring took effect. Mr Barron claimed this was largely because they had difficulty in finding a person of the right calibre to take on the position.
Evidence of Ms. Catrina McCartney:
Ms Catrina McCartney who was a manager with the respondents also gave evidence to the Court. She told the Court of having interviewed the complainant on the 18th November 2002 at the offices of Teamworx Retail Recruitment. She also interviewed two other candidates on the same day. Following these interviews she contacted Ms. Denise Brady of Teamworx Retail and arranged a second interview for the complainant and one of the other candidates. These interviews were to take place at 9:30 and 10:00am on Friday 22nd November 2002 at the respondent’s shop in Grafton Street. She went on to say that on Thursday 21st November 2002 Mr Barron contacted her and explained that he had to travel to Waterford urgently on the following day. It was therefore agreed that the interviews for the following morning would have to be cancelled. Ms McCartney told the Court that she was detained at meetings for most of that day and only got to speak with Ms Brady at 4:40pm. She explained to her that the interviews could not proceed, as Mr Barron could not be there. She recalled being told by Ms Brady that the complainant was pregnant but this would not have caused any difficulty for the respondent.
The witness pointed out that the decision to cancel the interviews was taken on or about lunchtime on the 21st of November, before she became aware of the complainant’s pregnancy. Ms McCartney pointed out that the respondents employed a high percentage of female staff and pregnancy and the taking of maternity leave was and are regularly encountered without difficulty.
Evidence of Mr. Donal Hickey:
Mr Donal Hickey is an architect who was engaged by the respondents in a project for in developing their new store at John Roberts Square in Waterford. The witness told the Court that he had undertaken numerous projects with the Company, which had necessitated travelling around the country with Mr Barron. Mr Hickey told the Court that the Waterford project was high risk as the building was old and a number of substantial changes had to be made to it. Decisions on changes were made as the project progressed as it was a very complex and high maintenance project.
The witness recalled travelling to Waterford with Mr Barron around November 2002 in relation to this project. The normal procedure would have been for him to drive from his own home in Fairview to Mr Baron’s home in Blackrock and they would then continue their journey together to the project. He noted from his records that on the morning of the 22nd November 2002 he purchased petrol at a Ringsend petrol station at 6am. He believed that this purchase was made on his way to Mr Barron’s house and these records confirmed to him that they had travelled to the Waterford site on that date in the Company of Mr Barron.
Evidence of Ms Denise Brady:
Ms Denise Brady who is a Director of Teamworx Retail Recruitment agency gave evidence to the Court. She told the Court that the complainant registered with her agency with a view to obtaining employment in the retail industry. The witness told the Court that in November 2003 she liaised with Ms Catrina McCartney with a view to setting up interviews for four candidates who had applied for the position of manager on the ground floor of Pamela Scott Retail outlet in Grafton Street. The first interviews were arranged at her office for Monday the 18th November 2002. Three out of the four candidates turned up for interview on the day, including the complainant. The complainant and one other candidate were to be called for a second interview on Friday 22nd November 2002. The witness told the Court that she telephoned Pamela Scott’s on Wednesday 20th November and spoke to Catrina McCartney for the purpose of confirming that the interviews would proceed on the following Friday. The witness said that this was her normal practice. She had intended to contact Ms McCartney again on the evening before the interviews were scheduled to take place. However, before doing so the complainant telephoned her seeking confirmation that everything was still in order for the following day. In the course of this conversation the complainant told Ms Brady that she was pregnant and she asked that this information be passed on to Pamela Scotts. Ms Brady said that she congratulated the complainant on her pregnancy.
The witness then telephoned Pamela Scott and spoke with Catrina McCartney. Ms McCartney told her that the interviews scheduled for the following day with both the complainant and the other candidate would have to be cancelled. She explained that Mr Barron, who was due to carry out the interviews, had been called away to Waterford on urgent business. Ms Brady said that she then told Ms McCartney that the complainant was pregnant. She said that Catrina McCartney had no difficulty with this. It was agreed that the interviews would be rescheduled in due course.
Some time later the witness again discussed the matter with Ms McCartney who informed her that the respondent was restructuring the management of the Grafton Street store and that the position in question was put on hold. The witness denied having told the complainant that the interviews were being cancelled because the Company could not employ her because of her pregnancy.
Evidence of Ms Louisa Maagdenburg:
Ms Maagdenburg manages a hair studio and boutique in Malahide, Co. Dublin. She told the Court of having received a job application from the complainant for a position in her boutique. She interviewed the complainant and took a copy of her C.V. The witness recalled that in the course of an interview with the complainant, she (the complainant) stated that she had worked at Pamela Scott’s. The witness subsequently contacted Mr Barron at Pamela Scott’s to enquire about the complainant’s employment record. She was informed that the complainant had never worked for the Company.
Evidence of the Complainant:
The complainant told the Court that she had registered with Teamworx Retail Recruitment seeking employment in the fashion retail sector. She was later told that the respondent was seeking a manager for the first floor of its premises in Grafton Street. The complainant was interviewed for this post on the 18th November 2002. She was later informed by the agency that her first interview had gone well and that she was being invited to attend for a second interview on Friday 22nd November 2002. The complainant was briefed by Ms Brady on the aspects of her experience which she should emphasise at the interview. She was also advised that she had a very good chance of getting the post and that there was some urgency in filling the position.
The complainant had her first hospital appointment in connection with her pregnancy on the day before the second interview was due to take place. She had experienced a threatened miscarriage and a difficult early pregnancy and was relieved to learn that an ultrasound scan had shown her pregnancy to be progressing normally.
The complainant decided to inform the employment agency of her pregnancy. For that purpose she telephone Ms Brady at approximately 4:34pm on the afternoon of 21st November 2002. Ms Brady told the complainant that she felt obliged to pass this information to Pamela Scott. Soon after the complainant received a phone call from Ms Brady by which she was informed that Pamela Scott were cancelling the interview scheduled for the following morning. She was told that this was because they said they could not employ someone who was pregnant into a management position. The complainant said that she became very upset by what she had been told and she discussed the matter in detail with her father on the following day.
The complainant told the Court that her father told her that it was unlawful to refuse a woman employment on grounds of pregnancy. She later contacted the Employment Equality Authority and on their advice she lodged a claim with the Office of the Director of Equality Investigations shortly thereafter. The complainant said that in January 2003 she received a telephone call from Ms Brady in relation to the claim that she had made to the ODEI. Ms Brady became upset and told the complainant that the cancelled second interview had nothing to do with her pregnancy and that all second interviews had been cancelled. The complainant was adamant that Ms Brady had informed her that the second interview was cancelled because of her pregnancy on the instructions of Pamela Scott.
Conclusions:
The Court has carefully evaluated all of the evidence in this case.
The Court accepts that Mr Barron travelled to Waterford on the morning of the 22nd of November 2002 and that the interviews might have had to be rescheduled on that account. However no satisfactory explanation was given as to why the interviews were not rescheduled. It is the respondent’s case that the restructuring of the management functions which had been decided upon meant that the position for which the claimant had applied was no longer available. The evidence indicates that the restructuring in question did not take place until some considerable time after the 22nd November 2002 and that an internal candidate in fact filled the position.
There is a sharp difference in the recollection of the complainant and that of Ms Brady concerning the telephone call on the evening of the 21st November 2002 at which the complainant was told that the second interview was cancelled. The complainant was clear in her recollection of being told by Ms Brady that Pamela Scott could not employ a person who was pregnant into a management position. Ms Brady denied having said anything to that effect.
Having considered the evidence of both witnesses, in conjunction with the evidence as a whole, the Court prefers the evidence of the complainant. The Court is therefore satisfied that Ms Brady did inform the complainant that the second interview had been cancelled because the respondent could not employ a pregnant woman in a management position. The Court further believes, as a matter of probability, that Ms Brady would not have so informed the complainant unless she had received an indication to that effect from the respondents.
Burden of Proof:
The European Community (Burden of Proof and Gender Discrimination Cases) Regulations 2001 (S.I. 337 of 2001) provides, in effect, that where facts are established by a complainant from which discrimination may be inferred it is for the respondent to prove on the balance of probabilities that there has been no infringement to the right of equal treatment.
In this case the complainant has established facts, which, in the Court’s view, are of sufficient significance to raise an inference of discrimination. Consequently, the probative burden is on the respondent to prove that the complainant was not discriminated against.
Having regard to the evidence as a whole the Court is satisfied that the respondent has failed to discharge that burden. Accordingly the complainant is entitled to succeed.
Determination
It is the determination of the Court that the complainant was discriminated against by the respondent when they failed to afford her a second interview on grounds of her pregnancy. The decision of the Equality Officer is upheld and the award of €7000 in compensation is affirmed.
The appeal herein is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
26th July, 2004______________________
JBChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.