Hegarty(Represented by Noonan Linehan Carroll Coffey, Solicitors, on the
instructions of the Equality Authority) AND Hollywood Home Entertainment, Cork
1. DISPUTE
1.1 This dispute concerns a claim by Mr Michael Hegarty that he was discriminated against by Hollywood Home Entertainment on the ground of age contrary to the provisions of the Employment Equality Act, 1998 when he was not interviewed for the position of Store Person.
1.2 Noonan Linehan Carroll Coffey, Solicitors, on the instructions of the Equality Authority, referred a claim on behalf of the complainant to the Director of Equality Investigations on 6 September 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 3 October 2002 to Anne-Marie Lynch, 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. Submissions were sought from both parties and a joint hearing was held on 13 November 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant said that he responded to a newspaper advertisement of 22 February 2002. The advertisement sought applicants for the position of store person, for locations in Ballincollig and Cork Airport, and asked interested parties to telephone Liz at a Cork number. When the complainant made the telephone call, he discovered the advertiser was the respondent. The complainant gave his name, telephone number and age (34; his date of birth was 20 December 1967) to the woman he spoke to. When he had had no further contact after three weeks, the complainant said he telephoned again.
2.2 The complainant said that he was told the position had been filled by interview. The complainant said he was surprised and told the woman he was speaking to that he had expected to be asked for a CV and to attend for interview. He pointed out that the only information he had given was his name, telephone number and date of birth, and he said he felt he was discriminated against on the ground of age. He said the woman said the only reason for asking age was to ensure an applicant was aged over 18 years.
2.3 The complainant sought information from the Equality Authority, and subsequently decided to approach the respondent in person. He said he went to its store in Ballincollig and asked to speak to the Manager. He identified himself to the man he spoke to, whom he believed to be a member of junior management, and explained the situation to him. The complainant said that the man refused to fill in the questionnaire contained in the ODEI 5 and was very offhand. He said that this man said there had been no interview for the position, but that "a lad working for them went for the job and got it".
2.4 The complainant then sought representation from the Equality Authority, who instructed a legal representative to deal with his claim. The complainant said that his solicitor wrote to the respondent on two occasions, as did the Equality Authority, and that no response was received to any of these letters. He said he believed he was unfairly treated on account of his age, and that this treatment was discrimination contrary to the Employment Equality Act.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that discrimination occurred. It agreed that it had placed an advertisement on the relevant date, and said that the position advertised was for a store person at new premises near Cork Airport. The Ballincollig location was mentioned to allow the temporary transfer of the relevant employee to provide cover as necessary. The respondent said that at the time of the advertisement the new premise was in a sale-agreed status, and it was expected to be concluded within a month or so. However, it subsequently became the subject of litigation and the sale did not proceed.
3.2 The respondent said that interviews were never held for the position because of the uncertainty caused by the litigation. The advertised position never materialised and it felt that it had no obligation to contact any applicants. For the record, the respondent said that its existing store person was born on 6 June 1965.
3.3 The Managing Director of the respondent accepted that the letters received on behalf of the complainant had not been responded to, but said this was because he felt that the claim was a "pack of lies" and the complainant was "chancing his arm".
3.4 The Managing Director said that he worked up to eighty hours each week at the Ballincolling store, and that he was available to deal with any issues arising on a daily basis. He said he had a major concern with the allegation that the complainant visited the store and would maintain that someone would speak to him about any aspect of employment in the company without bring it to the Managing Director's attention. He suggested that it did not in fact occur, and also suggested that the second telephone conversation described by the complainant also did not occur.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of age contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include age. Section 8 provides that:
(1)In relation to-
(a) access to employment...
(b) conditions of employment...
(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
The complainant of discrimination against the complainant
4.3 In a recent claim of discrimination on the disability ground taken under the 1998 Act, the Labour Court said "It is now established in the jurisprudence of this Court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI NO 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board ([2001] ELR 201) This places the evidential burden on the complainant to establish the primary fats on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If the two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." (Flexo Computer Stationery Ltd and Kevin Coulter [EED0313]). I am satisfied that the same procedural rule should be applied in this claim.
4.4 While most of the facts of this claim are in dispute, it appears clear that the complainant made the initial telephone call. The advertisement for the position clearly asked applicants to telephone Liz. It was not disputed that name, telephone number and age were the only details taken on this occasion. It is also not disputed that the complainant was not contacted again by the respondent.
4.5 The respondent suggested that neither the second telephone call nor the visit to Ballincollig actually occurred, while the complainant insisted that they did. I note that the complainant's initial submission, in describing the second telephone call, referred to "the girl on the phone" while he said at the hearing that he had again spoken to Liz. The complainant said that he was told firstly that the position was filled by interview and secondly that an existing employee was given the position. The respondent, on the other hand, said that the position never materialised because of legal difficulties.
4.6 In a position such as this, it is necessary for me to conclude on the balance of probabilities which version of events is more likely to be true. According to the complainant's own evidence, he asserted that he felt he had been discriminated against on the ground of age on the occasion of the second telephone call. He was unable to provide any further information as to why he thought this, or what may have been said that indicated this was the case. The alleged reference to a "young lad" getting the job did not occur until he visited Ballincollig. In the circumstances, I must find that he has failed to make a prima facie case of discrimination and that the respondent does not have to rebut the allegation of discrimination.
4.7 The complainant pointed out that the respondent failed to respond to any of the letters issued to it, and failed to provide a submission to the Equality Tribunal until the date for the hearing was set. He invited me to draw inferences of discrimination from this failure to comply with my investigation. I note that the respondent's Managing Director felt that the complainant was making a spurious claim, and that he declined to respond to any correspondence on that basis. He did ultimately co-operate with the Equality Tribunal by forwarding a submission and attending the hearing. Having seen his demeanour at the hearing, I have no doubt of his sincerity. He appeared to be genuinely angry at what he felt was an opportunistic claim. However, it is important for respondents to realise that their opinions of the validity or otherwise of claims are not relevant. The Equality Tribunal is obliged to investigate and decide claims which have been properly referred to it, and respondents are obliged to co-operate with such investigations. In this particular claim, as the complainant has not satisfactorily established facts which would establish a prima facie case, I do not consider that the respondent's initial delay warrants drawing an inference of discrimination.
5. DECISION
5.1 Based on the foregoing, I find that Hollywood Home Entertainment did not discriminate against Mr Hegarty on the ground of age, contrary to the provisions of the Employment Equality Act, 1998.
_____________________
Anne-Marie Lynch
Equality Officer
22 March 2004