FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MOATE HOUSE CARE & CONVALESCENT CENTRE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - PATRICIA BUCKLEY & CATHERINE 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-E2005-005
BACKGROUND:
2. The complainants referred their case to the Labour Court on the 4th of February, 2005. A Labour Court hearing took pace 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 Centre (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:
-An advertisement was placed in the Westmeath Independent for a Cleaner/ General Assistant on the 12th of September, 2003. The complainants applied for the position.-Some days after their application was submitted, the complainants accused the respondent of discriminating against them.
Due to a change in the internal staffing structure of the Centre where staff hours were about to be reduced due to a seasonal downturn, two existing employees decided to take on the role of the vacant Cleaner/General Assistant job. As a result it was not necessary to interview anyone for the position as the job no longer needed to be filled.-On the 22nd of September 2003, the respondent wrote to the two complainants informing them that they had not been shortlisted for interview.-On the 24th of September 2003, the complainants called to the Company premises and ‘demanded’ to know why they were unsuccessful in their application. A manager came in from her home to speak to them. They behaved in an abusive way towards her.
Complainant’s Case:
-In September 2003, the complainant’s telephoned the Centre in response to an advertisement in the Westmeath Independent, and subsequently sent in their curriculum vitae, as requested by management. They were informed that they would be called about attending for interview at the end of the week.-The complainants attempted on a number of occassions to telephone the manager to organise an interview but he was unavailable.-The complainants attended the Centre and spoke to a manager who informed them that there was no job available.-It is the complainant’s contention that they were discriminated against on the grounds of their gender, marital status and disability.
Respondent's Case:-The respondent rejects the allegation that it discriminated against the complainants on the grounds of gender, marital status or disability.-It is submitted that no competition took place and that no one was called for interview for the job as Cleaner/General Assistant as the job was filled by two incumbent employees taking on the duties, as otherwise they would have lost hours due to the end of the busy summer season.-As the post had previously been occupied by a female, and two females took over the job on her departure, the respondent contends that it did not discriminate on gender grounds.-The respondent was not aware of the marital status of the complainants and therefore could not have discriminated on those grounds.-The respondent was also unaware of the complainants' disability and, therefore, could not have discriminated on those grounds.-The burden of proof lies with the complainants and they have failed to establish facts to raise an inference on any of the alleged grounds.
Conclusions of the Court
The Court has had full regard to the submissions made by both complainants and the respondent, 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 post of Cleaner/General Assistant in the Centre.
The filling of the advertised vacancy was unusual in that, having advertised for the post of Cleaner/General Assistant, it was subsequently filled internally by two existing employees due to a reduction in their hours at the time. The respondent produced documentary evidence to the Court to verify this assertion and the Court finds this evidence acceptable.
It is noteworthy that having submitted their applications and before the respondent contacted the complainants for interview they made a number of telephone calls to the Centre, all alleging discrimination. The respondent gave evidence that
- “There were often up to ten phone calls in a day by one or other of the complainants shouting down the phone “ye discriminated against us”.”
Due to the internal restructuring in the Centre it was decided not to interview anyone for the job, however, the complainants were not informed of this explanation but were informed that they were not being shortlisted. Perhaps in light of the complainants' behaviour on the telephone and subsequently, the respondent’s action were understandable.
No evidence has been adduced to prove that the respondent discriminated against the complainants due to their gender.
No evidence has been adduced to prove that the respondent discriminated against the complainants due to their marital status.
No evidence has been adduced to prove that the respondent discriminated against the complainants due to their disability.
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 non-appointment of either of the complainants for the post of Cleaner/General Assistant was not due to discriminatory reason based on their gender, marital status or disability.
In the circumstances, the Court does not accept that the complainants' 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.