FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MAPAS CATERING LIMITED T/A MCDONALDS (REPRESENTED BY MAPAS CATERING LIMITED T/A MCDONALDS) - AND - CATHERINE BUCKLEY + PATRICIA BUCKLEY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Act, 1998 DEC E2005-004
BACKGROUND:
2. The complainants referred their case to the Labour Court on the 4th of February, 2005. A Labour Court hearing took place on the 10th of June, 2005, in Mullingar. The following is the Court's determination:
DETERMINATION:
This dispute concerns a claim by two complainants that the Workshop (the respondent) discriminated against them on the grounds of gender, marital status, and disability in terms of section 6(2) (a), (b) and (g) of the Employment Equality Act, 1998 (the Act) and in contravention of Section 8 of the Act, 1998, in relation to access to employment.
The claims were referred by the complainants to the Director of Equality Investigations pursuant to Section 77(1) of the Act.
The claims were investigated together (all facts relating to the complainants and the complaint are similar) by an Equality Officer who held that the respondent had not discriminated against the complainants. It is against that decision of the Equality Officer that the complainants appealed to the Court.
Facts
The factual background to the case can be summarised as follows:
-The complainants responded to an advertisement in the West-Meath Independent for full and part time positions in McDonalds Athlone in May 2003. Interested applicants were invited to attend for interview on Tuesday the 27th of May 2003. In total 50 people attended for interview, including the two Complainants, and all were interviewed. No written applications were invited or submitted. The interviewees were asked questions about themselves and asked to give verbal responses to scenarios which were put to them. These scenarios were given to ascertain how the candidates would handle situations.-Two different Store Managers interviewed the complainants.-After the interview, the management team reviewed all those interviewed and selected seven people to fill the vacant positions. The two complainants were not selected.
-All unsuccessful applicants were notified by post the following day by standard letter, which included the sentence“Unfortunately, on this occasion you were unsuccessful but please feel free to apply again when we next advertise”.
-The complainants voiced their opinions and their disappointment and on several occasions between May and September 2003 were abusive and threatening to the respondent.-The complainants submitted unsolicited application forms in August, 2003 and again on the 2nd of September, 2003.-When further vacancies became available at the end of September, 2003, the complainants were offered an interview by the Store Manager. Both complainants declined the offer and instead insisted that they were entitled to a job. Shortly afterwards they submitted forms to the Respondent indicating that they were pursuing a claim under the Employment Equality Act, 1998.
Complainant’s Case :
-The complainants attended for interview at McDonalds, Athlone in May 2003, in response to an advertisement which appeared in a local newspaper.-The complainants claim that they were discriminated against due to their gender, marital status, and disability when they were not offered either full-time or part-time positions in the Company.
-The complainants stated that at the interview management indicated that they would not be paid the same amount as other employees were paid.
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It is submitted by the complainants that they were informed that they should come back in September when they would be offered jobs in the restaurant. When they returned on the3rd of September 2003, they were refused application forms and were told to come back again in two weeks. When they returned, they were informed that there was no work available for them. A week later there was an advertisement in the window of the restaurant advertising job vacancies.
The Respondent’s Case :
-The respondent denies all allegations of discrimination against the Company.-The positions advertised in May, 2003, were to fill general assistant positions, which involved working in all areas. The complainants indicated at interview that they were only interested in cleaning duties and sought a job which was already occupied out by another employee.
-All other applicants were willing to take up the full range of duties.
-A number of applicants were deemed more suitable; consequently four males and three females were offered the positions.-At no time were details of the marital status of applicants sought.-The respondent was not aware of the complainants'disability, however, it acknowledges that the complainants are now saying that they asked a question relating to the retention of disability allowance.The respondent had no recollection of such matters being discussed at the time.
-The respondent disputed that promises of jobs were given to the complainants. However, despite their abusive and rude behaviour to management, following the interview in May 2003, they were offered a second interview in September, which they declined.
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The respondent submits that the complainants displayed an attitude that they were entitled to positions regardless of what the employer thought.
Conclusions of the Court
The Court has had full regard to the submissions made by both complainants, and the Court accepts that the issue in this case is whether the complainants were discriminated against on the gender, marital status and disability grounds in not being appointed to full and part time positions in the respondent’s restaurant in Athlone.
Fifty people responded to the advertisement and all were interviewed by the Store Managers on 27th May, 2003. Seven of the applicants were offered jobs as general assistants, four males and three females.
The Court notes that the respondent has from time to time employed people with disabilities, both mental and physical. The person who occupied the cleaner position had a slight disability. No evidence has been adduced to prove that the respondent discriminated against the complainants due to their disability.
The Court is satisfied that the reason the complainants were not selected was due to their unwillingness to take on all the duties of the advertised posts, their responses at interview to the scenarios put to them and their general unsuitability in comparison to other candidates, as demonstrated by their abusive and threatening behaviour.
No evidence has been adduced to prove that the respondent discriminated against the complainants due to their marital status.
Burden of Proof
In order to succeed, the complainants must first satisfy the Court on credible evidence that they were treated less favourably in the competition than other candidates without a disability. It is only if that burden is discharged that the Court should proceed to consider if a causal link existed between the less favourable treatment so established and the complainant’s disability. The mere assertions of discrimination made by the complainants cannot be accepted as evidence on which the Court could base findings of fact.
This approach is entirely consistent with the procedural rule formulated by this Court inMitchell v Southern Health Board [2001] ELR 2001and which is normally applied by the Court in all cases of discrimination. Under this rule, a complainant bears the onus of proving facts from which discrimination may be inferred. If that onus is discharged, the respondent bears the burden of proving, on the balance of probabilities, that there has been no infringement of the principle of equal treatment.
That is the approach which the Court has adopted in this case.
The Court is satisfied that the selection of applicants for positions as general assistants was not conducted in a discriminatory manner, indeed the complainants were offered a second opportunity to apply for vacancies in the company.
The Court is also satisfied that no evidence has been presented to show that the complainants were treated less favourably than other candidates without a disability.
In the circumstances, the Court does not accept that the complainant’s evidence goes far enough to establish aprima faciecase. Accordingly their case cannot succeed.
Determination
For all of the reasons set out above, the Court finds that the respondent did not discriminate against the complainants on gender grounds, marital status or disability grounds contrary to the provisions of the Act. Accordingly, the decision of the Equality Officer is affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th August, 2005______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.