Ms T
AND
A Communications Company (in liquidation)
(Represented by Mazars)
1. DISPUTE
1.1 This dispute concerns a claim by Ms T that she was discriminated against by a Communications Company on the ground of gender, contrary to the provisions of the Employment Equality Act 1998, when she was not offered employment. The respondent company went into voluntary liquidation during the course of the investigation and the matter was subsequently dealt with by the liquidator appointed pursuant to section 278 of the Companies Act 1963.
1.2 The complainant referred a claim to the Director of Equality Investigations on 3 June 2004 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 1 February 2005 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 21 April 2006.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant says that she lived opposite the respondent's premises at Richmond Street in Dublin. She says that she attempted to hand in her CV in February 2004 but a manager told her the store was not hiring. The complainant alleges that she had just spoken with employees in the store who had told her the store was hiring. She says she was told vacancies were arising because many of the employees were foreign nationals who were returning home.
2.2 The complainant says she spoke to a different manager in April 2004, who told her the store was hiring and took a copy of her CV. However, she says the manager did not contact her again. The complainant says she subsequently spoke to an employee named Emmet, who said that management liked to hire staff recommended by existing employees. He suggested she give him a copy of her CV so that he could pass it on to a manager with his recommendation. Some weeks later, when the complainant told Emmet she had not been contacted, she says he suggested this was because the respondent did not want to hire women after a female member of staff had been attacked in another store.
2.3 The complainant says she was told by another employee on 31 May that the respondent did not employ women because a female worker had been harassed by a customer. She says this was repeated on 23 October by an Australian staff member, who used to be a supervisor, and who allegedly also said that if the respondent did hire women the male members of staff would get all the night shifts, because it was too dangerous for women to work at night.
2.4 The complainant says that, in the month before she lodged her complaint, she did not see any female staff in the public areas of the respondent's Richmond Street premises, although she acknowledges that there may have been a female supervisor who called in occasionally. The complainant says that she lived across the street, regularly spoke with employees and took notice of who was working in the public areas. She says that it would be important to investigate not only how the number of female employees decreased over time, but to identify the numbers of females working upstairs as opposed to downstairs (that is in non-public as opposed to public areas). She also suggests that the respondent may have hired more women before she lodged her complaint because the employee with whom she spoke on 31 May was suspicious the respondent may be sued.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 As previously stated, the respondent company went into voluntary liquidation during the course of the investigation and the response to the complaint was submitted by the liquidator, who indicated that the directors absolutely denied the allegations of discrimination. In the event, one of the directors attended the hearing to give evidence in person.
3.2 The liquidator says that the respondent company received between seven and ten unsolicited CVs each day and that it was standard policy not to reply to them. While this may be seen as discourteous, the liquidator says consideration must be given to the nature of the operation, which had a high percentage of students and foreign nationals employed by the company on a short-term basis. As a consequence, staff turnover was high but in line with staff turnover levels for the industry in general.
3.3 The liquidator submits that it was company policy to try to facilitate employees by assigning them to stores near their homes. He suggests that the Richmond Street store may have coincidentally had only male employees at a particular point in time, but this was not indicative of company policy. The redundancy claims received by the liquidator demonstrate that that, on average, the respondent company employed 50% female staff members.
3.4 The director of the company submits that petty theft and robbery were a feature of a cash business, but confirms that no members of staff were ever attacked on the respondent's premises. As a precautionary measure, the respondent company tried to roster female staff members in certain stores during the day, but the liquidator submits that this was evidence that the company wished to protect its staff. The hiring of female staff was not hindered by this concern, and the liquidator submits that to turn this into a basis for grounding a claim of gender discrimination was, at a minimum, opportunistic. The director of the company gave evidence that one female member of staff was subjected to unwelcome attention by a customer, and was facilitated by being moved to the Richmond Street premises, but he denied absolutely that she was in any way assaulted.
3.5 The liquidator notes that the complainant claims to have been told by employees that the store was hiring, and points out that these statements were unsubstantiated hearsay or opinion. He submits that the complainant's only cause for complaint is that her various CVs were not acknowledged and she somehow felt entitled to an offer of employment as a result of her persistence in calling to the respondent's premises.
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 her on the ground of gender 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, including gender. Section 8 provides that
(1)In relation to-
(a) access to employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the disability ground (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.
4.4 The essence of the complainant's case is that she was not called for interview by the respondent company, despite leaving in her CV on several occasions, and that she was told by staff members that women were not being employed because of concerns about safety.
4.5 It was not disputed that the complainant left her CV into the Richmond Street store. However, she did not contend that this was ever done as a response to an advertised vacancy. It was submitted on behalf of the respondent, and not disputed by the complainant, that it received up to 50 unsolicited CVs every week. I cannot find that there was any obligation on the respondent to interview or even consider these applicants for employment. The complainant contended that she was told on more than one occasion that vacancies existed, but most of these alleged comments came from employees who could not have been aware what arrangements had been made by management to fill those vacancies. From the complainant's own evidence, at least one of the employees who told her about forthcoming vacancies was a Swedish female student who was returning home, which demonstrates that women were employed in the respondent's premises at the time when the complainant started looking for work there.
4.6 The complainant's information about a woman being attacked or harassed came from staff members, and can only be considered as hearsay. The director's evidence, not contradicted by the complainant, was that a female member of staff who was pestered by a customer was moved to the Richmond Street premises, where the complainant had sought employment. I find the evidence on behalf of the respondent to be more persuasive.
4.7 It should be noted that the complainant asserted at the hearing that she should have been offered a job by the respondent company because of both her previous experience in similar employment and her fluency in English (the complainant is Swedish). In support of this assertion, the complainant referred to two Spanish members of staff in the Richmond Street premises, whose English she said was very poor, and she claimed she felt the fact that they were employed and she was not supported her allegation of discrimination.
4.8 I am unable to accept this aspect of the complainant's case. The degree of fluency in English required was a matter for the respondent. The director of the company gave evidence that the two Spanish employees were excellent workers and that some 98% of customers were non-Irish, making fluency in English a relatively insignificant matter. The complainant's own opinion of her suitability for employment does not constitute evidence of discrimination against her. Having considered all of the evidence, I cannot find that the complainant has established a prima facie case that discrimination occurred and the respondent therefore has no case to answer.
5. DECISION
5.1 Based on the foregoing, I find that The Communications Company did not discriminate against Ms T contrary to the provisions of the Employment Equality Acts 1998 - 2004.
_____________________
Anne-Marie Lynch
Equality Officer
14 August 2006