FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A HOTEL (REPRESENTED BY SWEENEY MCGANN SOLICITORS) - AND - TWO WORKERS 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-E2004-037.
BACKGROUND:
2. The Labour Court investigated the above matter on the 28th January, 2005. The Court's determination is as follows:
DETERMINATION:
This dispute concerns a claim by two complainants that the Hotel (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.
At the hearing on 28th January 2005, the complainants withdrew their claims of discrimination on the grounds of gender, marital status in terms of section 6(2) (a), (b). Accordingly, the Court proceeded to hear the claim under section 6(2) (g), relating to the disability ground only.
The claims were referred by the complainant 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 open recruitment day held on 4th April 2003. The purpose of the open recruitment day was to invite members of the general public to apply for positions with the respondent. Interested applicants were invited to complete an application form. The complainants attended on the day and completed the application forms. They stated that they met with the Assistant Manager who advised them of the purpose of the open day and accepted their application forms. She enquired as to the type of positions they would be interested in and was advised that they were seeking positions in cleaning. The Assistant Manager explained that there were two types of cleaning duties in the Hotel, in the kitchen and in accommodation. The complainants advised that they were interested in the accommodation cleaning duties.
-As the Assistant Manager was unaware of the recruitment needs in accommodation (due to the absence of the Accommodation Manager at the time) she advised the complainants that she would contact them in the middle of the week to advise them if there were any positions available in accommodation.
-On 9th April 2003, the Assistant Manager telephoned the complainants to advise them that having spoken to the Accommodation Manager, that there were no vacancies in the accommodation area at that time. She advised them that she would keep their applications on file in the event of future vacancies becoming available.
-A number of days later, the complainants came into the Hotel and spoke to another Assistant Manager about jobs in accommodation. As the complainants caused a disturbance in the reception area of the Hotel, the Gardai were called.
-The details completed by the complainants on the application form relating to their ‘Education and Experience’ stated that they had attended Westmeath VEC from 2001 to 2002, Mullingar Adult Education and Employment Centre and Austin Friar Street, Mullingar, Co. Westmeath. Under the heading ‘Other Skills & Experience’. One of the complainants answered ‘Ballymore Community Employment Scheme’ and the other complainant answered ‘cleaning Rosemount Hall, cooking the dinner for the old people’. Under the heading ‘Employment History’ the first complainant answered "Ballymore Community Employment Scheme", cleaning from 1999 to 2002 and the second "Rosemount C.E. FAS", cleaning and cooking until 24th May 2002.
Complainant’s Case
-The complainants attended at the Hotel in response to the advertisement for an Open Recruitment Day on 4th April 2003. The advertisement stated that there were a variety of both part time and full time positions available and experience was not essential.
-The complainants contended that the Assistant Manager promised both of them a job in the Hotel and that she would contact them on the following Tuesday, which she failed to do. Therefore, the complainants telephoned the Assistant Manager, who indicated that there would be one suitable vacancy becoming available in two weeks time and that a decision could be made between the complainants as to which of them would avail of the position.
-When there was no further contact, the complainants visited the Hotel to speak to management. They were informed that the Assistant Manager was not available and that there were no positions available. When the Garda arrived, she asked management on their behalf for the return of their application forms. The respondent promised to return the forms in the post.
-The complainants withdrew their claims relating to gender and marital status, and continued to pursue their claims on the disability grounds; the complainants have a learning disability. The complainants contend that, as they did not have their Junior or Leaving Certificates, unlike the other applicants, that they did not get the jobs and therefore, they were discriminated against.
Respondents case
-The respondent denied the allegations of discrimination.
-The respondent contended that the advertisement and the recruitment procedures could not be deemed to be discriminatory.
-The respondent stated that the complainants completed application forms at the Open Recruitment Day; they were not interviewed for positions and were not informed that there would be one position available in two weeks. The Assistant Manager told the Court that on the recruitment day, having briefly scanned through their application forms she noticed that they were identical in terms of experience and in the type of position sought. During this meeting the ladies asked which one of the sisters would she choose if there was only one position available, as it was highly unlikely that there would be two positions available in accommodation. She indicated to them that in the event of such a situation arising, that she would leave it up to themselves to choose which one would take the job.
-The respondent indicated to the Court that it was not aware that either of the complainants had a disability until notice of the claim under the Act was received and was not aware of the nature of that disability until the Equality Tribunal hearing.
-The Assistant Manager who met with the complainants on 4th April 2003 did not have the authority to offer positions to any of the applicants on the day. These application forms were passed on to the relevant department managers in the Hotel, depending on which positions in the hotel were applied for. Neither was the Assistant Manager aware of whether vacancies were available in the various departments. On the day in question, a member of management from Headquarters was due to carry out the Open Recruitment Day but was unavailable.
-There were no vacancies in the Accommodation Department at the time. Two persons commenced in the Accommodation Department around that time. One of whom had been offered a position prior to the Open Recruitment Day and the second had worked in the Hotel on a previous occasion and had applied for a position in February 2003. There were no other appointments in this department until 1st June 2003, when an employee who had previously worked in the accommodation department returned to work in the Hotel.
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 disability ground in not being appointed to positions in the Accommodation Department of the Hotel.
The respondent advertised for applicants for a variety of positions at the Open Recruitment Day, and the respondent indicated to the Court that there were seven vacant positions. There had also been two vacant positions in the Accommodation Department around this time but both of these vacancies were filled by candidates who had applied and been offered positions in the Accommodation Department prior to the Open Recruitment Day.
The Court accepts that the assistant manager who met the complainants on the Open Recruitment Day was not aware whether there were any vacancies in the Accommodation Department at the time and needed to check the situation with the Accommodation Manager. The Court also accepts that she was not aware that they had a learning disability. The completed application forms gave details of their education, training and work experience and did not refer to the complainant’s learning disability. The Court accepts the respondent’s contention that the complainants education and training achievements were adequate for the duties required in the Accommodation Department. Evidence of an application form submitted on behalf of one of the successful appointees in the Accommodation Department suggest that no particular level of educational standard was required for this position. As the other successful appointee had previously worked in the hotel she was not required to complete an application form for this position.
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 no appointments were made for positions in the Accommodation Department arising from the Open Recruitment Day.
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 a prima facie case. 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 the disability ground 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
15th_March, 2005______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.