Mr Mark Savage
Vs
Federal Security Services Ltd
(Represented by Management Support Services (Irl.) Ltd.
1. DISPUTE
The dispute concerns a complaint that Federal Security Services Ltd (the respondent) discriminated against Mr Mark Savage (the complainant) on the grounds of his gender contrary to the provisions of Sections 8 of the Employment Equality Act, 1998 when he applied for a security officer position with the company.
2. BACKGROUND
2.1 The complainant, who is male and wears his hair in a ponytail, attended an interview for the position of security officer with the respondent security company on 29th May, 2006. The complainant states that he was told that his ponytail hairstyle would not be acceptable to the respondent's client and he was asked would he consider getting his hair cut. The complainant was unwilling to get his hair cut and was not offered the position. The complainant contends that a female applicant would not have been asked to consider getting her hair cut and believes that he was discriminated against on the grounds of his gender contrary to the 1998 Act.
2.2 The complainant referred a complaint to the Director on 15th September, 2006. The Director delegated the case to Raymund Walsh, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act on 11th May, 2007. The Tribunal consented in exceptional circumstances to the re-scheduling of a hearing of the complaint scheduled for 4th July, 2007 at the respondent's request and the hearing was later held on 26th September, 2007.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant gave evidence that he attended an interview with the respondent's human resources manager for the position of security officer on 29th May, 2006 and filled out a detailed application form. He states that he was told that there was a vacancy for security guard at a television station but that his ponytail would not be acceptable to the client and would he consider getting it cut. When he asked how his ponytail would affect his performance as a security officer he states that he was told that it was a question of image. The complainant states that he left the interview on the understanding that he would be kept in mind for other vacancies and left his e-mail address with the interviewer. However he saw further vacancies advertised through FÁS about two weeks later and when he contacted the respondent about them he received no follow up.
3.2 The complainant believes that the respondent regarded him as unsuitable for any security officer position because of his hair style and believes that a female applicant would not have been treated in this manner. The complainant alleges that he was offended, humiliated and suffered stress and anxiety as a consequence of discriminatory treatment by the respondent. The complainant refers to the Equality Officer's decision in Murray v Scoil Mhuire and the Department of Education and Science (DEC-E-2005/015). The Equality Officer in that case found that the respondent discriminated against a female job applicant on the gender ground for reasons related to her pregnancy and ordered the respondent to pay the complainant €10,000 by way of compensation. The complainant believes that the cases are similar and that a similar award of compensation is appropriate in this case.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant approached the company about applying for a position and was given an application form to complete and return to the company and he duly returned the form dated 9th May, 2006. He was called to interview on 29th May, 2006 and met the person responsible for recruitment who was present at the hearing. The respondent states that the complainant expressed an interest in night duty as Static Guard and that the only such vacancy at the time was at a television studio. The respondent states that at the time of the interview the complainant's hair was tied in a ponytail down to his hip. As the complainant's ponytail was too large to be covered by a cap he was asked if he would consider cutting his hair. The complainant asked whether a female would be asked the same question and raised the question of discrimination. There was no further discussion about this particular vacancy and the complainant was asked to keep in touch with the respondent about future vacancies that might be suitable for him. The respondent states that it received an e-mail from the complainant on 12th June, 2006 enquiring about another position advertised in FÁS. As it was unclear which position the complainant was referring to, the respondent replied to him requesting clarification. The respondent states that it has no record of receiving a further two e-mails which the complainant included in his submission.
4.2 The respondent states that all their static officers are required to wear the company uniform and to be presentable at all times. The respondent rejects the allegation that the complainant was treated less favorably than a female would have been and states that a female with long hair would similarly be requested to tie her hair up so that it would be concealed under a cap or else worn in a bun. The respondent believes that for this to be possible in the complainant's case his hair would require to be shortened. The respondent distinguishes the present case from that of Mark Savage v Group 4 Securicor (DEC-E-2006/051) where the Equality Officer found that the complainant was discriminated against when he was told at interview that he would require a 'short back and sides' haircut if he was to be employed by the respondent in that case. The Equality Officer in that case was satisfied that a female applicant would not have been asked to meet this requirement and found in the complainant's favour.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the gender ground in terms of Section 6(2)(a) of the Employment Equality Act, 1998 contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. Having regard to Section 85A of the Act and well established caselaw, it is for the complainant in the first instance to adduce evidence from which a presumption of discriminatory treatment can be made.
5.2 There is no dispute that the complainant's ponytail was raised as an issue by the respondent in relation to the vacancy at the television studios. The complainant's case relies largely on his belief that a female applicant would not have been asked to consider having her hair shortened in similar circumstances. The complainant was neatly presented on the day of the hearing with his ponytail tied up and when I asked him how long it would be if it were untied he gestured that it would be above waist level. I note that there was a dispute between the parties as to whether the complainant's hair was down to his hip or tied up on the day of the interview, the respondent arguing that his hair was down to his hip and as this was a one to one interview there was no other evidence available which would have clarified this issue. The respondent argued strenuously that a female applicant with long hair would have been required to tie up her hair and conceal it in a bun or under her cap but that because of the bulk and length of the complainant's hair it would have to be shortened in order to achieve this. I was persuaded by the respondent's argument that a uniformed security officer would be required to meet a certain standard of neat presentation and that this requirement applied equally to men and women. I must therefore find that the complainant has failed to adduce prima facie evidence on which a presumption of discriminatory treatment could be based.
6. DECISION
6.1 On the basis of the foregoing, I find that Federal Security Services Ltd did not discriminate against the complainant on the gender ground in terms of Section 6(2) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
Raymund Walsh
Equality Officer
12 November, 2007