FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : GROUP 4 SECURICOR (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARK SAVAGE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998 against the Decision of the Director of Equality Investigations, Dec-E2006-051.
BACKGROUND:
2. A Labour Court hearing took place on the 5th June, 2007, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
This case came before the Court by way of an appeal by Mr Mark Savage against the Decision of the Equality Tribunal in which he successfully claimed to have been discriminated against by Group 4 Securicor Ltd on grounds of his gender in contravention of S 8 of the Employment Equality Act 1998 and 2004 (the Act). For ease of reference the parties are referred to in this Determination using the designations prescribed at S77(4) of the Act. Hence, Mr Savage is referred to as the "Complainant" and Group 4 Securicor is referred to as the "Respondent".
An Equality Officer awarded the Complainant the sum of €600 in compensation for the discrimination which was found to have occurred. In making that award the Equality Officer held that in the circumstances of the case a modest amount of compensation was appropriate. The Complainant appealed to the Court against the quantum of compensation. The Respondent did not cross-appeal. Consequently, the only issue before the Court is the appropriate quantum of compensation.
The Facts.
The facts as admitted or as found by the Court are as follows:-
The Complainant is a security officer by occupation. The Respondent is the provider of security services. In response to a newspaper advertisement the Complainant telephoned the Respondent seeking employment. He was advised to attend at the Company's premises for interview.
The Complainant attended at the Company's offices and was met by Ms K who was an office assistant with the Respondent at that time. Ms K told the Court in evidence that she noticed that the Complainant was wearing his hair long and in a ponytail. She told the Complainant that "its short back and sides here".
Ms K told the Court that it was her understanding of Company policy to require male security officers to have short hair. She also told the Court that she had an application form which she offered to the Complainant. She told the Court that the Complainant did not accept the form and left the premises without comment.
In his evidence the Complainant denied that he had been offered an application form. He said that he felt demeaned by the comment which had been made to him and he did not see any point in proceeding further with his application.
The Court has considered the conflict of evidence between the Complainant and Ms K on this point. The Court notes that Ms K gave frank evidence, including evidence on matters which were not entirely supportive of the Respondent's case. She was adamant that she had an application form in her hand which she offered to the Complainant. On balance the Court believes that Ms K's recollection on this point is more accurate and that her evidence should be preferred.
The Complainant made no further contact with the Respondent and some three months later presented his complaint to the Equality Tribunal. The Complainant was a member of a Trade Union at the time of the incident giving rise to the complaint. He did not, however, raise the incident with his Trade Union.
The Respondent presented evidence, which the Court accepts, that its policy was not as described by Ms K. The Court is satisfied that the Respondent's dress code required both men and women to maintain a neat and tidy appearance and to wear long hair tied up. The Court is further satisfied that some security officers employed by the Respondent did in fact have hair styles similar to that of the Complainant.
Conclusions of the Court.
It is accepted that in relation to employment a requirement in a dress code which restricts men's freedom to determine their appearance to a greater degree than it does women, is discriminatory on the gender ground. This was determined by this Court in the case ofO'Byrne v Dunnes Stores[2004] 15 ELR 96.
In this case the Court is satisfied that the remark made by the office assistant who met with the Complainant when he presented himself for interview did not represent the reality of the Respondent's dress code. It was nevertheless a discriminatory remark and Ms K was acting in the course of her employment. Accordingly, the Respondent is vicariously liable for the discrimination thus occasioned. The Respondent accepts liability but contends that the matter could have been quickly and effectively resolved had the Complainant not acted precipitously in leaving the office and not pursuing his application further. On this account it submitted that the award made by the Equality Officer should not be increased.
The Court believes that on the facts of this case the Complainant did contribute to any loss or damage which he suffered to a significant degree. Had he remained for interview he could have clarified the detail of the Respondent dress code as it related to hairstyle with a more senior member of management.
Moreover, the Complainant was a member of a Union at the material time and the Union had sole negotiating rights with the Respondent. The Court has no doubt that had the Complainant reported the incident to the Union it would have raised the matter with the Respondent and the position would have been satisfactorily resolved.
In all the circumstances of the case the Court accepts that there are significant mitigating factors present in this case. The Court is also satisfied that any loss or damage, including distress and hurt feelings, suffered by the Complainant was caused, to a significant degree, by his preceptive reaction to the comment made by Ms K rather than by the comment itself.
Determination
In all the circumstances the Court concurs with the view of the Equality Officer that a modest level of compensation is appropriate in this case. Accordingly, the Decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
25th June, 2007______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.