FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : LANTERN SECURITIES LIMITED (REPRESENTED BY JOHN C. WALSH & CO. SOLICITORS) - AND - MARK SAVAGE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998, against the Decision of the Director of Equality Investigations DEC-E2007/024.
BACKGROUND:
2. A Labour Court hearing took place in accordance with Section 83 of the Employment Equality Act, 1998, on the 11th December, 2007. The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal under Section 83 of the Employment Equality Act, 1998 and 2004, against Equality Officer's Recommendation DEC-E2007-024. The Complainant claims that he was discriminated against on the grounds of his gender in relation to access to employment in contravention of S 8 of the Employment Equality Act 1998 and 2004 (the Act), when he applied for a Security Officer position with the Respondent. 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 Lantern Securities Limited is referred to as "the Respondent".
An Equality Officer found that the Complainant had failed to establish a prima facie case of discrimination on the gender grounds and dismissed his claim.
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 an advertisement the Complainant telephoned the Respondent seeking employment. He was advised to attend at the Company's premises for interview.
The Complainant wears his hair long but neatly tied up in a bun at the base of his neck.
The Complainant attended at the Company's offices and was met by Ms C, Human Resources Manager with the Respondent at that time. Ms C took notes of the interview in which she commented on his long hair. The notes read:
“Long Hair – tied up: very tidy
Unemployed since Dec 2003
Security Experience: moved around a lot-Knows the job-Check References – Suitable if all OK”
As a result of the interview he was short-listed for a second interview. At his second interview on 7th March 2005, Mr. D, Managing Director of the Company, interviewed him. Mr. D asked him if he had a problem getting his hair cut and he responded in the affirmative. He was subsequently informed that he was unsuccessful and his application would be held on file for a period of six months in the event of any suitable vacancies arising. Within the six months he was contacted and offered a position in his local area. He refused the offer.
The Respondent’s legal representative submitted that the successful candidate for the job was a person who had five continuous years of experience and was the best qualified for the position. The Respondent admitted that he was asked about getting his hair cut, however, it stated that while it did not have a problem with long hair for health and safety reasons the norm in the industry is for Security Officers to wear their hair tied back neatly or in a bun or hairnet.
The Respondent’s legal representative stated that nine out of the ninety Security Officers employed by the Company have long hair and submitted photographic evidence to substantiate its position. He submitted that the Complainant had no coherent reason for refusing the offer of employment offered in September 2005.
Evidence
The Complainant and Mr. D, the Managing Director, gave witness evidence to the Court. In his evidence the Complainant submitted to the Court that he was not offered employment with the Respondent in March 2005 as he had long hair and in his view a female would not have been treated in the same manner. He told the Court that he had made other similar complaints against five other security firms and was of the view that the Respondent was aware of these allegations and was, therefore, prejudiced against him. He further submitted that the reason he was offered employment with the Respondent in September 2005 was to cover up for the alleged discrimination. He said that he declined the offer on the basis that he presumed due to his long hair that he would be placed on a building site, working at night, “out of the way”.
Mr. D denied that the Complainant was discriminated against. He explained the reasons why the other applicant was successful for the position in March 2005 and stated that the offer made to him in September 2005 was a genuine offer of employment in a logistics company based near his home address. He denied any knowledge of other complaints made against other security companies.
Conclusions of the Court
The issue which arises in this case is whether the Complainant was not offered employment with the Company because he had long hair and whether a female in the same circumstances have been treated any differently. The Respondent stated that its requirement for neatness applies to both men and women, both are required to wear their hair tied back neatly or in a bun or hairnet.
The Complainant told the Court that he wears his hair long, neatly tied up in a bun at the base of his neck. Indeed this was how it was worn on the day of the hearing and as described by Ms. C. in her report of his first interview in February 2005, when he was considered suitable for a second interview. The Court is satisfied that a small number of Security Officers employed by the Respondent similarly wear their long hair in a neat fashion and accepts that such a requirement is not unusual for Security Officers in the industry. The Court is satisfied that the requirement to wear his hair tied up neatly did not operate in a more restrictive manner for him than it would have in the case of females.
Having given careful consideration to the submissions of both sides and to the evidence presented at the hearing, the Court is satisfied that the requirement for neat hair did not constitute any less favourable treatment of the Complainant on the grounds of his gender, that his long hair was not a factor which adversely influenced the Respondent in its decision-making and accepts that the successful appointee had greater relevant experience for the position at that time.
The Court accepts that the offer of employment in September 2005 was made in good faith and is of the view that the reasons the Complainant gave for not accepting the offer were based more on his own perceptions of the Respondent’s motives than on the facts.
The Court is satisfied that the Complainant has failed to establish aprima faciecase of discrimination on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and 2004, contrary to section 8 of the Act in relation to access to employment.
Determination
In all the circumstances the Court concurs with the finding of the Equality Officer. Accordingly, the Decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st January, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.