FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DUBLIN SOUTH EAST MONEY ADVICE AND BUDGETING SERVICES (MABS) (REPRESENTED BY O'MEARA GERAGHTY MCCOURT SOLICITORS) - AND - JOHN LEDWIDGE DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998
BACKGROUND:
2. The worker appealed his case to the Labour Court on the 13th June, 2007, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 22nd January, 2008. The following is the Court's determination:
DETERMINATION:
Background
The Complainant applied for a position of full time Money Advisor with the Respondent. He was subsequently informed in writing that the position was in fact a part-time one and this letter also enquired whether he still wanted to apply. He continued with his application and was interviewed on 7th December, 2004. By letter dated 13th December, 2004, received by him on 23rd December, 2004, he was informed that he was unsuccessful. He was 44 years of age at the time. He learnt that a younger female candidate had been appointed to the position. He referred a complaint of discrimination on the age and gender grounds to the Equality Tribunal on 22nd April 2005. On 17th November 2006, the case was referred to an Equality Officer, who held a hearing on the 1st March, 2007. In his decision, dated 22nd May, 2007, the Equality Officer found that the Respondent did not discriminate against the Complainant on the stated grounds in terms of Section 6(2) and contrary to the provisions of Section 8 of the Acts. On 11th June, 2007, the Complainant appealed against the Decision of the Equality Officer. A Labour Court hearing was held on 22nd January, 2008.
Complainant’s Arguments:
1. The change in the job description from full-time to part-time favoured female applicants. The CSO’s Quarterly National Household Survey confirms that a higher and increasing percentage of part-time workers are female.
2. DSE MABS had a healthy balance sheet in the year in question and could well have afforded to take on a full-time money advisor.
3. One member of the Interview Board (the Office Manager) treated him in a discriminatory manner because of his age and gender in not awarding him any marks on her Assessment Performance Evaluation Sheet.
4. He was not asked any questions at the interview as to what work he was engaged in. All candidates were asked the same pre-set questions.
5. On December 16th and 23rd he contacted the office by phone but the Office Manager did not return his calls. Apparently the decision was made on or before December 13th but he could not get any result when he rang and he did not receive the letter telling him he was unsuccessful until the afternoon of the 23rd, ten days later.
6. He had an excellent C.V. for the job and satisfied all of the requirements. The fact that 60% of the people who still chose to apply for the job after it had been changed to part-time was evidence of discrimination. The ages ranged from mid 20’s to 60 years. Yet one of the youngest, if not the youngest candidate was successful. This also shows evidence of discrimination.
7. Questions asked by the Chairman of the Interview Board about his previous employment caused the complainant alarm and he felt they could have been discriminatory.
Respondent’s Arguments:
1. The change in job status was simply caused by the fact that the Department of Social, Community and Family Affairs which funds DSE MABS in its entirety, would not sanction the additional funding required to take on a full-time money advisor. There was no question of discrimination. Another advertisement would have cost an extra €2000 so the Respondent wrote to those applicants who had been short listed, asking them whether they still wished to compete. 8 people did, 5 males and 3 females.
2. The marks given reflected the honest views of the Interview Panel. The Office Manager felt that the Complainant “interviewed the Panel throughout the interview” and answered questions with “legal details rather than with compassion and sympathy”, necessary qualifications for a money advisor in a job like this. Despite these difficulties, the complainant was marked fourth of the seven interviewed on that day (one of the candidates-female-did not attend).
3. The successful candidate who was offered the job was a male candidate, so there could be no question of gender discrimination. Only when he declined was the position offered to, and accepted by the female candidate who had come second.
4. The delay in issuing the letters dated 13th December (which had been prepared earlier) to the unsuccessful candidates was caused by a number of factors which included:-
-the withdrawal of the successful candidate and the need to decide whether there was a need to re-advertise if the substitute also turned down the job.
-A series of delays in the post around that time owing to an industrial dispute .
5. The Complainant states in his complaint on age and gender grounds to the Equality Officer the first occurrence of discrimination was on 13th December, 2004, the date of the letter to him informing him that he had been unsuccessful, yet practically all his arguments concern matters which occurred prior to this date and between October, 2004, and the date of the interview i.e. 7th December, 2004. The Court therefore has no jurisdiction to hear any matters prior to the 13th December, 2004.
6. The statistics quoted by the Complainant do not demonstrate or back up any allegation of unfavourable treatment. The pool of interviewees contained more men than women (5 to 2).
7. The questions asked by the Chair of the Board were: -
“
-What is the size of the firm you work for?
-How many staff is there?
-What work did the firm do?”
- (These questions cannot be seen as discriminatory on any ground).
The Law Applicable / Findings:
In the case of “Mitchell v Southern Health Board” [2001] ELR 2001, the Labour Court said: -
- “The first requirement is 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 on 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 of being of sufficient significance to raise the presumption of discrimination, that the onus shifts to Respondent to prove that there is no infringement of principle of equal treatment.”
The Court accordingly upholds the Decision of the Equality Officer and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
21st February, 2008______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.