The Employment Equality Acts 1998 and 2004
Decision No:
DEC-E2007- 024
Savage
-v-
Lantern Securities Limited
1. CLAIM
1.1 The case concerns a claim by Mr. Mark Savage that Lantern Securities Limited, Dublin, discriminated against him on the gender ground in terms of section 6(2)(a) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to access to the post of Security Guard.
2. BACKGROUND
2.1 The complainant claims that during an interview for the post of Security Guard with the respondent, he was asked if he would have a problem getting his hair cut and he responded in the affirmative. He was subsequently informed that he was unsuccessful and that other candidates had experience and skills which more closely matched the respondent's requirements notwithstanding that the advertisement stated that no experience was required. He submits that he was discriminated against on the gender ground. The respondent rejects the allegation of discrimination and submits that the particular post was given to another applicant who had a lot of continuous experience and was a more suitably qualified candidate. The complainant was advised that his details would be held on file for six months and he was subsequently offered a position.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 1 April 2005. On 14 June 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 1 April 2005 and from the respondent on 19 June 2006. A joint hearing of the claim was held on 28 February 2007. Final correspondence in relation to the case was received from the respondent on 29 March 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that on 19 February 2005, he replied to a vacancy on the FAS website for a Security Guard for premises located in Swords, Co. Dublin. He phoned the number provided and was requested to forward a copy of his CV, which he did. On 21 February 2005, the Director of the respondent phoned and asked him to attend for interview that day. The complainant informed him that he could not attend that day. He then said that he would have his HR Manager call the complainant to arrange an interview.
3.2 On 22 February 2005, the complainant submits that he received an e-mail from Ms. C of HR inviting him to call to arrange an interview date. He phoned and attended an interview with Ms. C on 23 February 2005. He submits that when Ms. C observed his appearance and in particular his hairstyle, she tried to say that the vacancy was not for the location at Swords particularly but that security guards were placed at different locations according to a particular client's first impression or preference for a guard.
3.3 He submits that on 7 March 2005, he attended a second interview with the Director, Mr. D. He reiterated that the vacancy was not necessarily for the location in Swords. He submits that Mr. D asked him if he would have a problem getting his hair cut and he replied that he would. He submits that on 15 March 2005, he received a letter informing him that his application was unsuccessful due to other candidates having experience and skills that more closely matched their requirements. He submits that the advertisement posted on the FAS website stated that no experience was required.
3.4 The complainant submits that he believes that he was discriminated against on the gender ground with regard to access to employment. He submits that in a similar situation, a female applicant for the position would not have been questioned about having a haircut.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that it runs a number of advertisements on an ongoing basis with FAS. The advertisements are posted on the FAS website. FAS require that a specific location be entered on each posting. At the time of the complainant's application, the respondent had a number of positions advertised with FAS each detailing a location as required.
4.2 The respondent submits that interviews were held as applicants applied. When candidates attend for interview with the company, it is explained to them that all staff are employed to work in Dublin and are rostered for work depending on where there is a requirement and that the actual place of work will vary on an ongoing basis as dictated by operational needs. This is a standard term of employment within the Security Guard business. Ms. C explained this to the complainant at his first interview. It was also explained to the complainant that certain clients of the company may have a difficulty with a Security Guard having long hair and he accepted that.
4.3 In relation to experience, the successful candidate for the job was a person who had five continuous years experience and in the opinion of the respondent was best qualified for the position. At the time, the respondent interviewed up to twenty people. In the event that it hires an applicant with no experience, full training is provided. All new employees are given on-site training regardless of their previous experience.
4.4 The complainant's second interview was with Mr. D; the Managing Director who explained to the complainant that he had been short listed amongst others for a second round interview. It was explained to the complainant by Mr. D what the job entails, the roster that operates within the company, that the position involves a mix of day and night work, that he could be rostered anywhere in the greater Dublin region. The complainant was agreeable to this. The pay structure and holiday entitlements were outlined to him. It was explained to him that a full uniform would be supplied which had to be worn on duty. It was also explained that high visibility jackets must be properly worn, fully closed up at all times as it was a health and safety issue.
4.5 The complainant had long hair that was neatly tied in a bun at the base of his neck. It was explained to him that long hair could be a health and safety issue and that the respondent did not have a problem with long hair provided it is kept neat and tidy. It was pointed out to him that if intruders were to gain access to his assignment, his hair could be pulled if worn loose forcing him to the ground and causing an injury. It was also explained to him that this applied to body piercing such as nose, eye and earrings.
4.6 On inquiry, the complainant said that he would not wish to have his hair cut and Mr. D confirmed that this was not a problem. It was explained to the complainant that there were other candidates to see and that the company would respond to his application in the near future. The particular post was given to another applicant who had a great deal of continuous experience (5 years) and was a more suitably qualified candidate. The decision was not based on the complainant's hair or appearance generally.
4.7 The respondent submits that a female applicant is treated in an identical way as a male applicant and the same health and safety issues are explained to a female as to a male applicant. Since the company was formed in 2002, a number of persons, both male and female have been employed with long hair, which is always tied back neatly. It would never be allowed to be loose for either a female or male as it is a health and safety issue. None of this presented a problem with the complainant as his hair was neatly tied in a bun.
4.8 The complainant was notified that his application on that occasion was unsuccessful but that the respondent would hold his details on file for a period of six months in the event that a suitable position arose. A vacancy did in fact arise in September 2005 which was offered in writing to the complainant and he refused. The vacancy was then filled from other applications that were held on file. The respondent does not accept that the complainant was discriminated against on the gender ground.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the gender ground in relation to access to the post of Security Guard. I will consider whether the respondent directly discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
Caselaw on establishing a prima facie case of discrimination
5.3 Council Directive 97/80 EC on the Burden of Proof in Cases of Discrimination Based on Sex was transposed into Irish Law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001. Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC provides:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove to the contrary."
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered Article 4 of the Directive and the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 More recently, the Labour Court has stated in a case concerning discrimination on the gender ground:
"The correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court in Southern Health Board v Dr. Teresa Mitchell.
It is a matter for the complainant to prove on the balance of probabilities the primary facts on which she relies in making her case of discrimination. Then it is for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied, the onus is then shifted to the respondents to prove that there has been no infringement of the principle of equal treatment." (2)
Issue whether the burden of proof is satisfied in this case
5.5 The complainant in this case alleges that he was discriminated against on the gender ground as he was asked at his second interview whether he would have a problem getting his hair cut. He submits that a female applicant for the position would not have been questioned about having her hair cut. It was accepted by the respondent that the complainant was asked at his second interview whether he would consider having his hair cut. At the hearing, the respondent submitted that it was explained to the complainant why the question was asked and the issue was raised in the context of a general discussion about the post and health and safety and the discussion was not just about hair. The respondent submitted that hair is not permitted to be loosely worn for either males or females as it is a health and safety issue. At the hearing, the respondent further submitted that males and females are treated the same at the interview stage in that health and safety issues are explained to them. The respondent also submitted that at the offer stage, it is explained to all applicants that long hair must be neatly kept and tied at the back of the neck or cut.
5.6 The complainant was interviewed by the HR Manager on 23 February 2005 and the successful candidate was interviewed on 9 March 2005. The interview report form in respect of both candidates was submitted in evidence. I note that the notes in respect of the complainant's first interview state "Long Hair, tied up; v tidy, unemployed since Dec 2003 Sec exp: moved around a lot, knows the job". The notes also refer to checking references and records the complainant as suitable if all okay. The complainant then proceeded to an interview with the Mr. D, the Managing Director on 7 March 2005 and it was at that stage that he was asked whether he would have his hair cut when long hair was raised in the context of health and safety in the employment. On 11 March 2005, the complainant was informed that his application on that occasion was unsuccessful as there were other candidates whose experience and skills matched the respondent's requirements more closely. The complainant was also informed that his application was being held on file for a period of six months and that should a suitable vacancy arise, the respondent would be in contact with him again. The complainant was subsequently offered a position on 22 September 2005 which he submits was after he referred a claim to the Equality Tribunal. I note that the date of the complainant's referral to the Tribunal was 1 April 2005.
5.7 The respondent submitted that the particular post was given to another applicant who had a great deal of continuous experience and was more suitable than the complainant and that the decision was not based on the complainant's hair or appearance generally. The successful candidate's CV shows one period of employment from 2001 to February 2005 as a Security Guard with one company. The complainant's CV indicates three periods of employment as a Security Guard between 2000-2003 with three different companies.
5.8 The respondent provided a list of names of persons with long hair both male and female who were employed by it. It submitted that it currently employs four females and one male with long hair.
5.9 I have considered the following:
(i) the notes recorded at the first interview refer to the complainant's hair being long, tied up and very tidy;
(ii) the complainant was recorded as suitable on the notes in respect of the first interview;
(iii) he was called for a second interview;
(iv) that long hair is a safety issue in the security industry and that this was raised with the complainant in the course of his second interview in the context of health and safety issues;
(iv) the respondent's direct evidence that males and females are treated the same and that health and safety issues are raised with them at the interview stage;
(v) the respondent's direct evidence that males and females are treated the same at the offer stage in that it is explained that long hair must be worn neatly tied at the back of the neck or cut;
(vi) the successful candidate had one period of continuous employment as a Security Guard whereas the complainant had three periods of employment over a three year period;
(vii) the complainant was subsequently offered a position as a Security Guard in September 2005.
In the circumstances and taking into account the totality of the evidence, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in relation to access to the position of Security Guard.
6. DECISION
6.1 On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of section 6(2)(a) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Act in relation to access to employment.
__________________
Mary Rogerson
Equality Officer
11 May 2007
notes
(1) DEE011 15 February 2001
(2) South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January 2004