Ms. PB & Ms. CB -v- A Hotel (Represented by Sweeney Mc Gann Solicitors)
1. CLAIM
1.1 The case concerns a claim by Ms. PB and Ms. CB that a hotel discriminated against them on the gender, marital status and disability grounds in terms of section 6(2)(a), (b) and (g) of the Employment Equality Act, 1998 in relation to access to employment.
2. BACKGROUND
2.1 In early April 2003, the complainants visited the hotel and completed applications forms for positions as cleaners at the hotel. They allege that they were then immediately interviewed and promised positions. They claim that they were discriminated against on the gender, marital status and disability grounds as the respondent subsequently failed to appoint them to positions. The respondent claims that the complainants were informally interviewed as part of an open recruitment day and that their applications were put on file pending vacancies arising. The respondent submits that the complainants were never promised jobs and it denies the allegation of discrimination.
2.2 The complainants referred complaints under the Employment Equality Act 1998 to the Director of Equality Investigations on 24 June 2003. On 19 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from both complainants on 26 January 2004 and from the respondent on 27 March 2004. A joint hearing of the claim was held on 19 May 2004.
3. SUMMARY OF THE FIRST NAMED COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that she did an interview on Friday, 11 April 2003. The manager with whom she met said that she would phone on the following Tuesday. The complainant submits that she phoned the manageress on the Tuesday and she was told that there would be one vacancy in two weeks whichever one of the two sisters would like to take it. Every time after that when she phoned, the complainant was told that the manageress was not there.
3.2 The complainant visited the hotel on 30 April with her sister. She asked to see the manager who interviewed her. She was informed that the manager was not there and that all the jobs had gone. She then asked for the application form to be returned. Another manager from personnel asked her to leave the hotel. Then the manager phoned the Gardai. A Garda arrived and asked for the application form and the manager said she would post it.
3.3 The complainant submits that she was discriminated against as she was promised a job at the interview. She was also told that she would not get the full rate of pay and she as never shown around the hotel. She submits that she has suffered a monetary loss.
4. SUMMARY OF THE SECOND NAMED COMPLAINANT'S WRITTEN SUBMISSION
4.1 The complainant submits that she did a job interview on Friday, 11 April 2003. She was promised a job and the manager said she would phone on the following Tuesday. The complainant submits that she phoned the manageress and the manageress said that there would be one vacancy in two weeks whichever one of the two sisters would like to take it. Every time after that when she phoned, the complainant was told that the manageress was not there.
4.2 The complainant visited the hotel on 30 April with her sister. She asked to see the manager who interviewed her. Another manager dealt with her and she was informed that the manager who interviewed her was not there and that all the jobs had gone. She then asked for her application form to be returned. Another manager from personnel asked her to leave the hotel. Then the manager phoned the Gardai. The Garda asked for the return of the application form and the manager said that she would post it.
4.3 The complainant submits that she was discriminated against as she was promised a job at the interview. She was told that she would not get the full rate of pay and she was never shown around the hotel. She submits that she has suffered a monetary loss.
5. SUMMARY OF THE RESPONDENT'S SUBMISSION
5.1 On Friday, 4 April 2003, a recruitment day was organised by the respondent. The assistant manager (Ms. McM) and another member of staff (Mr. SK) met with the applicants. The majority of the applicants showed up between 12 noon and 3pm which clashed with lunchtime, so the "interviews" were very informal and short. The assistant manager met with the complainants in the reception area. The complainants' application forms were identical i.e., same experience, looking for the same job. She asked the complainants what type of posts they were interested in and they said cleaning.
5.2 The assistant manager then explained that there were two types of cleaning positions, cleaning in the kitchen and cleaning in accommodation. The complainants said they would be interested in a cleaning job in accommodation. They mentioned that they would only be able to work a few hours each week as anything over a certain amount would affect their allowances.
5.3 During the interview, the complainants raised the subject of which one of the sisters the assistant manager would choose if there was only one position as the assistant manager had explained that it was unlikely that there would be two positions. A lot of the conversation centred on which person the assistant manager would choose over the other. The assistant manager said that it would be hard for her to decide as their applications forms and experience were identical and if there was a job for one of them, she would probably let them decide. At the end of the meeting, the assistant manager said she would ring them back in the middle of the following week as she knew she would not have time to go through the application forms over the week-end.
5.4 The following Tuesday (8 April), the complainants phoned the hotel a number of times demanding to speak to the lady manager. The assistant manager (Ms. McM) was on duty on the day but was extremely busy due to a new voucher scheme which was launched in the restaurant. She told the receptionist to tell the complainants that she was very busy and would ring them back the next day. They both continued to ring reception and were very insistent and rude on the telephone to the receptionist. Eventually, the assistant manger took the call and she explained that she was very busy, that the accommodation manager was out sick and that she would ring them back once she had spoken to the accommodation manager.
5.5 On the following day on 9 April, the assistant manager rang the complainants. She submits that she is not sure which complainant she spoke to. She explained that the delay in getting back to them was due to the accommodation manager being out sick. She explained that there were no vacancies and that she would keep their details on file should anything suitable arise in the future.
5.6 Another duty manager (Ms. F) received three phone calls from the complainant and her sister some time in April 2003. When she took the call, one of them started screaming down the phone while the other one seemed to be shouting in the background. She received three phonecalls in the space of fifteen minutes about the job applications. On another day, she went to reception and saw two people causing a disturbance. They were asking for the lady manager. When she explained that she was the manager on duty, they said she was not the lady manager who promised them a job and they wanted to speak to her. As the incident was happening in full public view, she asked them to take a seat. They refused and shouted that they were going to sue the hotel. She advised them that they were causing a disturbance and if they did not calm down, she would have to call the guards. The ignored her so she called the guards and a garda arrived. When the garda arrived, the complainants demanded that their application forms be given back to them. The Duty Manager explained that she did not have them to hand. The garda calmed them down and escorted them from the premises.
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 In this case, the complainants allege that the respondent directly discriminated against them on the gender, marital status and disability grounds when they applied for positions as cleaners at the hotel. In this case, I will consider whether the respondent directly discriminated against the complainants on the gender, marital status and disability grounds in terms of section 6(2)(a), (b) and (g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties
Caselaw on establishing a prima facie case of discrimination:
6.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
6.3 More recently, the Labour Court has stated in relation to the burden of proof in a case concerning a dismissal on the disability ground:
"It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2001). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove on the contrary on the balance of probabilities."2
6.4 I will firstly consider the issue of whether the complainants have established a prima facie case of direct discrimination on the gender, marital status and disability grounds. Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this act referred to as "the gender ground"),
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground".
Evidence in this case:
6.5 The respondent submitted in evidence a copy of an advertisement placed in the Connacht Tribune headed "Open Recruitment Day". The open recruitment day was scheduled for Friday, 4 April 2003 from 10am to 5pm. It states:
"Both young and mature applicants are welcome to apply for a variety of both parttime and full time positions. Experience not essential as training will be given." The respondent also submitted in evidence a copy of the notice it posted in the hotel in relation to the open day which is identical to the advertisement placed in the paper. At the hearing, it submitted that the purpose of the open day was to allow applications to be made. The respondent submitted that the aim of the person meeting people on the day was to take applications and to talk applicants through the forms. The applications were then passed to the relevant manager depending on the position being applied for, i.e. the accommodation manager, the restaurant manager, the bar manager. If positions became available, the applicants would be contacted for interview. The respondent had some vacancies in the bar area and the buffet area at the time of the open day.
6.6 The complainants stated that they called to the hotel on Friday, 11 April but submitted at the hearing that it could in fact have been 4 April. The complainants met with an assistant manager when they called to the hotel and they allege that she promised them jobs as cleaners in the hotel. The assistant manager gave evidence at the hearing that it was not her function to offer positions on the day and she did not offer a position to anyone who called on the day. She gave evidence that she took a phone call from one of the complainants on Tuesday, 8 April and advised them that she would ring them back the following day once she had a chance to speak to the accommodation manager who was out sick. She stated that on the following day, she phoned the complainants and explained that the delay in getting back to them was due to the accommodation manager being out sick. She also advised them that there were no cleaning vacancies at that time and that their applications would be held on file. The complainants dispute that the respondent phoned them in relation to their applications. It appears that some time later, before the end of April, the complainants sought the return of their applications. The complainants stated at the hearing that they have learning disabilities. The respondent submitted that it was not aware that the complainants had disabilities until the hearing of the claim.
Issue whether prima facie case established in this case
6.7 The application forms completed by the complainants do not seek information in relation to the applicant's family status or disability. The respondent submits that there were no vacancies for cleaners at the time of the complainants' applications and it is not the case that the respondent invited applications specifically for cleaners. The advertisements placed in the hotel and the Connacht Tribune invites applications for "a variety of both part time and full time positions." I have examined a list of appointments made by the respondent for the month of April and they show that two appointments were made in accommodation in April. The first one was made on 19 April 2003. A copy of that person's application form was made available to me and it is dated 29 March 2003. A second appointment was also made and that person commenced employment on 23 April 2003 on a casual basis working one in four Saturdays. The respondent submits that there is no application form for that person as she had worked in the hotel the previous October. The complainants could not have been considered for cleaning positions after the end April 2003 as at that stage, they had sought the return of their application forms. It therefore appears that no appointments to cleaning positions were made during April arising from applications received on the open day.
6.8 There is no evidence to indicate that the complainants' gender, marital status or disability were issues considered in relation to their applications. The complainants met with the assistant manager as part of an open recruitment day and were not interviewed for positions as cleaners. It appears that there were no vacancies for cleaners at the time of the complainants' applications and no appointments to positions as cleaners were made during April as a result of the open recruitment day. The divisional managers were responsible for recruitment in their own areas and the assistant manager who met with the applicants had no authority to recruit for any division. Even if there were vacancies and the normal interview situation took place, the complainants would have to present evidence to show less favourable treatment on the three specific discriminatory grounds which are the subject of their claim. I note that the Labour Court has stated:
"The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination."3
In this case, the complainants have not provided any evidence to indicate that they were treated less favourably in relation to their gender, marital status or disability. The complainants have failed to establish any facts which give rise to a presumption of discrimination and I therefore find that they have failed to establish a prima facie case of discrimination on the gender, marital status and disability grounds. Accordingly, their claims cannot succeed.
7. DECISION
7.1 On the basis of the foregoing, I find that the complainants have failed to establish a prima facie case of discrimination on the gender, marital status and disability grounds in terms of section 6(2)(a), (b) and (g) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to access to employment.
__________________
Mary Rogerson
Equality Officer
21 June 2004
1 DEE011 15 February 2001
2 Valerie Cascella and Antonio Cascella t/a Donatellos Restaurant v. A Worker EED043 9 February 2004
3 Superquinn v. Barbara Freeman AEE/02/8 No. 0211 14 November 2002