DEC-E2005-005 Full Case Report

Ms. Patricia Buckley and Ms. Catherine Buckley -v- Moate House Care & Convalescent Centre

1. DISPUTE
   
   1. The dispute concerns a claim by Ms. Patricia Buckley and Ms. Catherine Buckley that they were discriminated against on the grounds of gender, marital status and disability in terms of Sections 6(1) and 6(2)(a), 6(2)(b) and 6(2)(g) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when they were not offered a full-time cleaning position in the respondent organisation. The respondent denies the allegations.
   2. Consequently the complainants referred a complaint to the Director of Equality Investigations on 26th September, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 31st March, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing of this claim took place on 25th November, 200
      
2. SUMMARY OF THE COMPLAINANTS’ SUBMISSION
   
   1. According to the complainants they were refused a job when the manager of the respondent organisation said that he would call them for an interview for the cleaning position but failed to do so. The complainants, therefore, attended at the respondent organisation to be told by another manager that no cleaner was required and they were asked to leave. It is the complainants’ contention that they have been discriminated against by not been offered the job. The complainants say that by not been offered the job they were deprived of money.
      
3. SUMMARY OF THE RESPONDENT’S SUBMISSION
   
   1. The respondent states that in August, 2003 the incumbent cleaner at the respondent organisation informed the then acting Manager that she was likely to leave due to personal circumstances. The acting Manager then advertised the position of a full-time Cleaner/General Assistant on 12th September, 200 The respondent says that, after the advertisement had been placed, the incumbent post holder announced to the acting Manager that she wished to retract her discussion on leaving since a change in her personal circumstances meant that she could remain in the respondent’s employment. According to the respondent it received two applications from the complainants in the intervening period but due to the changed circumstances neither applicants were invited for interview. The respondent says that the acting Manager subsequently wrote to the complainants thanking them for their application and informing them that they had not been shortlisted for the post of cleaner.
   2. It is the respondent’s submission that some days after this letter issued the complainants called to the respondent organisation requesting information as to why they had been unsuccessful in their applications. The respondent says that they were very angry and vented their feelings in a vociferous manner, complaining loudly and abusively. According to the respondent the complainants threatened to take their complaint to an Equality Officer prior to departing. The respondent says that the visit by the complainants upset staff and residents and was considered by those that witnessed the incidents as being most inappropriate. While the acting Manager has left the employment of the respondent organisation the respondent supports his actions but recognises that the wording of his letter may have contributed to the disappointment experienced by the complainants.
      
4. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The issue for decision in this claim is whether or not the complainants were discriminated against on the grounds of gender, marital status and disability in terms of Sections 6 and 8 of the Employment Equality Act, 1998. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
   2. At the hearing of this claim the respondent sought to clarify its submission and stated that the occupant of the cleaning position in the respondent organisation did leave its employment and her position was filled by two other employees who had been working on a part-time basis and who had increased their hours to cover the vacant cleaning position. As a result of this the competition for the filling of the Cleaner/General Assistant position never took place. The respondent submitted evidence of work rotas showing these employees and their hours before and after the incumbent of the cleaning position left the respondent organisation.
   3. In this case I note that the competition for the filling of the position of full-time Cleaner/General Assistant never took place as a potential vacant position was filled by two employees who increased their part-time hours. In these circumstances I find that the complainants were not treated less favourably on the grounds of gender, marital status or disability as no competition took place for this Cleaner/General Assistant position.
   4. It is unfortunate that the respondent in this case gave different accounts in its written submission and at the hearing of this claim of how this position was filled. The conflict in the respondent’s own evidence is sufficient to raise an inference of discrimination. However the respondent did submit evidence to support the version of events as outlined at the hearing and I am satisfied that no competition took place for the position of Cleaner/General Assistant in the respondent organisation at the time. The respondent, by writing to the complainants stating that they were not placed on the shortlist for the vacant position, misled them into thinking that a competition had taken place and they had been unsuccessful. While the author of this letter has since left the employment of the respondent organisation I find it difficult to understand why such a letter had issued to the complainants given the measures that were put in place internally to fill the position. While I am critical of the manner in which the respondent handled this case I am satisfied that the complainants were not discriminated against by the respondent on the grounds of gender, marital status and disability.
      
5. DECISION
   
   1. In view of the foregoing I find that Moate House Care & Convalescent Centre did not discriminate against Ms. Patricia Buckley and Ms. Catherine Buckley as alleged in terms of Sections 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.

Gerardine Coyle,
Equality Officer,
26th January, 2005