FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : KENNEDY SECURITY LTD (REPRESENTED BY DAS GROUP) - AND - JAMES CONNOLLY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 - DEC-E2005-056.
BACKGROUND:
2. A Labour Court hearing took place on the 3rd October, 2006, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
This is an appeal under Section 83 of the Employment Equality Act, 1998, against Equality Officer's Recommendation DEC-E2005-056.
The complainant claims that he was discriminated against on the grounds of his gender and religious beliefs in relation to access to employment when he applied for a security officer position with the respondent. The complainant wears a beard, which he describes as “well trimmed”. He claims that when he attended for interview on 5th February 2004 that he was told that the beard did not go with the corporate image of the Company and consequently he was not offered the position. He contended that he was discriminated against on the grounds of his gender and religious belief contrary to Section 6(2) (a) and (e) of the Act.
The claims were referred by the complainant to the Director of Equality Investigations pursuant to Section 77(1) of the Act.
The Equality Officer held that the respondent had not discriminated against the complainant. It is against that decision of the Equality Officer that the complainant appealed to the Court.
The Complainant’s Case:
The complainant responded to a newspaper advertisement and attended for interview on 5th February 2004. He was interviewed by the proprietor’s son and the General Manager. He claims that during the interview one of the proprietor’s son made a remark to him that ““A beard would not go with the corporate image of the Company”,or words to that effect””. He complained that this was a discriminatory remark, following which the situation became quite agitated and the proprietor came out of his office to see what was going on. The Complainant could not recall who had made the remark, but said it was not Mr. B. K (the proprietor’s son who was in attendance in Court) and it was not Mr. K. Snr (the proprietor and Managing Director). He claimed it was Mr. K’s other son.
The Complainant held that the remark made was discriminatory on the basis of his gender and on the basis of his religious beliefs. He stated that he was not of any particular religious belief but that he “had a God given right to wear a beard”.
Respondent's Case:Counsel for the respondent rejected the allegation that it discriminated against the complainant on the grounds of gender, and religious belief.The respondent submitted that the complainant has failed to produceprima facieevidence of discrimination on gender and religious belief grounds and that he had failed to present any evidence to substantiate his case.
It contended that at no stage was the respondent aware of his religious belief or faith and rejected the complainant’s recollection of what occurred at the interview.
Counsel for the respondent stated that the interview was conducted by Mr. B. K and Mr. P. O’D, the General Manager. During the interview, Mr. T. K. Managing Director, entered the room to meet the interviewee, as he likes to meet all prospective employees. He spoke to the complainant about the company standards in relation to dress code and neat appearance. The complainant then became agitated and asked if he had a problem with his beard and said that he was being discriminated against. It was the complainant who brought up the issue of his beard and not the respondent.
The respondent stated that the complainant’s beard was never a problem and that the company employed a number of security officers with beards (evidence was presented to the Court to substantiate this contention). The respondent stated that the reason the complainant was not offered employment was due to his outburst and his agitated demeanour at the interview. The position being interviewed was for a security officer in a mental health facility involving the handling of patients. The respondent stated to the Court that it was their considered view following the outburst at the interview that the complainant would not be suitable for the position due to his volatile behaviour.
The respondent told the Court that both males and females are required to wear a standard uniform, which the company provides, and are required to have a smart and neat appearance, but that it had no difficulty with employees who wear beards.
Court’s Findings
The Court has considered all the evidence submitted by both parties. The complainant in his evidence to the Court could not recall who had made the remark, which caused him offence. He was of the view that it was Mr. K’s “other son”; he gave evidence that it was not Mr. B. K. or Mr. T. K (both of whom were present in the Court). He also stated that it was not Mr. O’D. The complainant was emphatic that Mr. K. Snr had another son. Mr. K. Snr gave evidence under oath that he had only one son.
In their evidence to the Court, both Mr. K. Snr and his son recounted how the complainant reacted when reference was made to the company’s standards on dress code and appearance. They both stated that they were taken by surprise by his sudden outburst. They described his clenched fists, his white face and his aggressive agitated state. Furthermore, Mr. B. K told the Court that the complainant had requested that his previous employers should not be contacted for references.
Based on the weight of the evidence given, the Court is satisfied that it was the complainant who brought up the issue of the beard when Mr. K. Snr referred to the Company’s dress code and appearance standards. In Mr. K. Snr’s evidence, he recounted how the complainant had said to him “are you looking at my beard” before he made his outburst. The Court is satisfied from the information presented that the Company has in the past and currently employs security officers who wear beards and moustaches.
Unlike the situation inDempsey v Superquinn EE 1997/03, or Singh v Rowntree Mackintosh Limited (EAT Scotland) ICR 554, 1979 case, or Dunnes Stores v William Pete O’Byrne EED/03/14cases, there is no evidence in this case that he was requested to shave off his beard. There is no evidence to suggest that the respondent had a policy, which stipulated that employees must be clean-shaven. On the contrary, men with beards have been and continue to be employed. There was no evidence presented to substantiate his claim that he was discriminated against due to his religious beliefs. The respondent gave evidence that he was not aware of the complainant’s religious beliefs. The Court is satisfied that this information was not sought by the respondent and was not proffered by the complainant.
Burden of Proof
It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2000). This approach is entirely consistent with the procedural rule formulated by this Court inMitchell v Southern Health Board [2001] ELR 2001and which the Court in all cases of discrimination normally applies.
Hence, it is up to the employee to show on credible evidence that he has been discriminated against on the grounds of his gender and his religious beliefs, then the onus switches to the employer to prove the contrary on the balance of probabilities. Based on all the evidence before the Court, it finds that the complainant has failed to establish facts from which an inference of discriminatory treatment might be raised and accordingly has failed to produceprima facieevidence of discrimination. His case cannot succeed.
Determination
For all of the reasons set out above, the Court finds that the respondent did not discriminate against the complainant on gender grounds or religious belief grounds contrary to the provisions of the Act. Accordingly, the decision of the Equality Officer is affirmed and the appeal disallowed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th November, 2006______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.