SAVAGE
(REPRESENTED BY SIPTU)
AND
GROUP 4 SECURICOR
(REPRESENTED BY IBEC)
1. DISPUTE
This dispute involves a claim by Mr. Mark Savage that he was discriminated against by Group 4 Securicor on grounds of gender, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when in the course of seeking employment with it he was advised that he would be required to have short hair in order to secure employment with the organisation.
2. BACKGROUND
2.1 The complainant attended for interview at the respondent's premises in Dublin in October, 2003 for the position of security guard. He contends that a member of the respondent's staff told him he would have to have a "short back and sides" hairstyle to secure employment with the company and that this constitutes discrimination of him on grounds of gender contrary to the Act. The complainant left the premises without being interviewed. The respondent accepts that the comment, as outlined, was made to the complainant but submits that it was made in error as it has employees, both male and female, who have long hair. It adds that it operates a policy of neat dress/appearance which applies to all employees regardless of their sex. It rejects therefore that it operates a discriminatory policy in respect of its dress code.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 23 December, 2003. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Submissions were received from both parties and a Hearing of the complaint took place on 15 September, 2006. A small number of points arose at the final hearing which required further clarification and this process concluded on 10 October, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
The complainant attended for interview at the respondent's premises in Dublin on 7 October, 2003 for the position of security guard. He has long hair and contends that on the day in question it was clean and groomed and tied in a knot above collar level. He adds that he was greeted by a female employee of the respondent who looked at him and told him he would have to have a "short back and sides" hairstyle to secure employment with the company. The complainant states that he nodded to her, left the office and did not attend for interview. He submits that this treatment constitutes discrimination of him on grounds of gender contrary to the Employment Equality Act, 1998.
4. SUMMARY OF RESPONDENT'S CASE
The respondent accepts that the comment was made to the complainant on the day in question by one of its employees (Ms. K). It submits however that this comment was a miscommunication by Ms. K as the company employs a number of males and females with long hair. It adds that the company has a well established dress code which applies to all employees and requires them to present for work with a neat/professional appearance as they are interfacing with the public on a regular basis. In this regard all employees are provided with full uniform and they are required to wear this uniform whilst on duty. Failure to do so is considered a disciplinary matter. The respondent states that the dress code indicates, inter alia, that hair should be "neatly cut and officers with long hair should wear it tied back tidily". The respondent rejects the assertion that it operates the policy on dress code in a discriminatory manner and furnished photographic evidence of male employees with long hair.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not Group 4 Securicor discriminated against Mr. Mark Savage on grounds of gender in terms of section 6(2) of the Employment Equality Act 1998 and contrary to section 8 of that Act, when in the course of seeking employment with it in October, 2003 he was advised that he would be required to have short hair in order to secure employment with the organisation. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 At the time of the alleged incident the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (1) set out the out the procedural rules to be applied as regards the burden of proof to be discharged by the parties in claims of gender discrimination. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his gender. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 There is agreement between the parties that on the day the complainant presented for interview Ms. K told him he would have to have a "short back and sides" hairstyle to secure employment with the company. The respondent submits that this was a miscommunication by her of the company dress code which requires employees to either have a neat hairstyle or tie long hair up and was therefore "an honest mistake". Section 15 of the Act places liability for the actions of an employee in the course of his/her employment firmly at the door of the employer. It is well established in law that ignorance of the law or the lack of intent to discriminate cannot be used as defences to the actions complained of. It is clear that Ms. K was acting in the course of her employment as HR Officer with the respondent. I am satisfied that the remark made by her to the complainant constitutes less favourable treatment of him in that such a comment would never be made to a female candidate presenting for interview and the respondent therefore applied different rules to comparable situations. Such behaviour has been defined as discrimination by the ECJ (2) and I find therefore that the respondent discriminated against Mr. Savage on grounds of gender contrary to the Act.
5.4 Before leaving this matter I feel it necessary to make some additional comments in the interest of clarity. Dress codes are common in many types of employment. They are intended to ensure inter alia, that employees who interact with the public present an acceptable standard of neatness and grooming. By their very nature that can apply different rules to men and women and it would be absurd to suggest otherwise. Anti-discrimination legislation does not require that men and women be treated the same in every circumstance - it requires that they be treated equally. It follows therefore that the operation of a dress code is not per se discriminatory, what may be unlawful is the manner in which the code is applied to men and women. Having evaluated the evidence submitted by the parties in this case, including photographic evidence, I am satisfied that the dress code operated by the respondent is applied equally to male and female employees and that having long hair is not a barrier to employment to either of the sexes.
6. DECISION OF THE EQUALITY OFFICER.
I find that the respondent discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in relation to the comment made to him when he presented for interview in October, 2003 in respect of his hairstyle. Having regard to all of the circumstances of the case, including the complainant's failure to clarify the position with the respondent before leaving the premises and the comment made at the hearing that "his chosen profession is that of security guard" I believe he should have been acquainted with the norms regarding dress code in the industry. I am of the view that a modest amount of compensation is appropriate in this case and I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004 that the respondent pays the complainant the sum of €600 by way of compensation for the effects of the discriminatory treatment on him. This approximates to a week's earnings on the basis of the most recent average industrial wage figures produces by the Central Statistics Office. The award does not contain any element in respect of loss of income on the part of the complainant.
____________________________
Vivian Jackson
Equality Officer
18 October, 2006
notes
(1) S.I. 37 of 2001
(2) Finanzamt Koein-Altstadt v Schumacker [1995] ECR 1- 225