Mr John Hendrick
-v-
Dunnes Stores LTD
1. Claim
1.1 The case concerns a claim by Mr John Hendrick that Dunnes Stores directly discriminated against him on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2004, in relation to access to employment pursuant to S. 8(1)(a) of the Acts.
2. Background
2.1. The complainant applied on 27 August 2005 for a position of night-pack worker in the respondent's store in Ashbourne, Co. Meath, and was interviewed for the position on the same day. He did not succeed at interview. At the time of the interview, he was 60 years of age. He alleges that the respondent discriminated against him on grounds of age, contrary to S. 6(2)(f) of the Acts.
2.2. The respondent denies that the complainant's lack of success at interview was related to his age, or that the respondent discriminated against him on ground of age in any other way. The respondent submitted that the complainant's qualifications and experience did not match the respondent's requirements for the position sufficiently well to succeed in obtaining a position as night-pack staff.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 14 December 2005. On 10 May 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A submission was received from the complainant on 21 June 2007. A submission was received from the respondent on 2 August 2007. Additional evidence was requested from the respondent on 4 September and received on 18 September 2007. A joint hearing of the claim was held on 23 November 2007. Additional information was requested from the respondent on 10 January 2008, and received on 4 February 2008.
3. Summary of the Complainant's Written Submission
3.1. The complainant submits that on 24 August 2005, the respondent advertised positions for night-pack staff in the Meath Chronicle and with FAS. On 27 August 2005, the complainant and his wife attended a recruitment event held by the respondent in the Ashbourne Coast Hotel, completed an application form, and attended a walk-in interview. He submits that despite an excellent references, he did not succeed at interview. He submits he asked the interviewer directly whether there was an "embargo" on older workers for the positions in question, and that the interviewer assured him there was not and that people like himself would bring a wealth of experience to the job.
3.2. He submits that on 19 September 2005, he received a letter from the respondent which states that the respondent did not have a suitable vacancy for him. He submitted that two days after he received the letter, the respondent advertised again for night-pack staff positions in the Meath Chronicle and through FAS.
3.3. The complainant submits that neither of the respondent's advertisement stated that any specific experience was necessary for the position, and that the FAS advertisement stated that full training would be given.
4. Summary of the Respondent's Written Submission
4.1. The respondent submits that the complainant was lawfully and properly treated at all times and that at no time did his age form the basis of his treatment.
4.2. The respondent's submission confirms that advertisements for positions at its Ashbourne store were place in the Meath Chronicle and with FAS, that the advertisement in the Meath Chronicle did not make reference to experience as alleged or at all, and that the complainant attended for interview on 27 August 2005.
4.3. The respondent submits that the complainant failed to make a prima facie case of discrimination, and that grounds other than age were the reason the complainant did not succeed in obtaining a position as night-pack worker.
4.4. The respondent submits that a competency-based interview was conducted for the position, and that the complainant was given a fair and reasonable opportunity to perform at interview. The respondent further submits that no discriminatory questions were asked of the complainant at interview, and that the interviewer assured him, in response to his express question, that his age was irrelevant to his application. The respondent submits that the interviewer was trained in the respondent's Equal Opportunity Policy, and was aware of the respondent's obligation under the Employment Equality Acts 1998-2004.
4.5. The respondent submits that the wording of the advertisement with FAS, "no previous experience required as full training will be given", were included by FAS without the instruction or approval of the respondent.
4.6. The respondent directed the Tribunal's attention to the following cases: McCormick v. Dublin Port Company, DEC-E2002-046 and Dublin Institute of Technology v. A Worker, Labour Court Determination DEE994. In the first of these cases, the Equality Officer stated that "[t]he Respondent is entitled to decide what criteria it considers best for its own promotional competitions, subject only to the stipulation that these may not be discriminatory criteria." In the second case, the Labour Court held that "it is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or the marital status of the complainant or the appointee influenced the decision of the Board."
5. Conclusions of the Equality Officer
5.1. At the hearing, the complainant gave the Tribunal an overview over his qualifications and career. He also submitted the CV which he had submitted in interview, in evidence. He stated that he was 60 years old at the time the events he complains of occurred.
5.2. The complainant qualified as a mechanic in 1965. After two years of employment in a private sector motor company, he commenced a career with CIE, which saw him rise steadily through the ranks. He held supervisor positions of increasing responsibility, and his final assignment prior to retirement was a position as Technical Assistant at Inchicore Works. He also submitted that he had undergone continuous training in relation to his work at CIE and in relation to IT skills.
5.3. He submitted that he felt that his experience in supervising teams of up to 20 workers, supervising performance, dealing with internal customers of CIE on a nationwide basis, fulfilling requests, auditing depots, issuing exam specs for vehicles, and getting material into shops, gave him ample relevant experience for a position such as night-pack worker with the respondent.
5.4. He further submitted that his active involvement in community activities in his home town, including the Scouts, the GAA, the soccer club and the pitch and putt club, proved his skills in interacting with other people as might be required in a position such as night-pack staff.
5.5. With regards to the qualifications and experience necessary for the job, he also submitted at the hearing a printout from an internet database as evidence, which states: "Dunnes Stores (Ashbourne) require Night Pack Staff to merchandise shelves. No previous experience required as full training will be given." He could not specifically identify the source of this information.
5.6. The complainant submitted that Ms A., the respondent's Human Resource manager, interviewed him for the job. He described the interview experience as a casual chat, in which the job, pay and training was described to him. He submitted that he was given to understand that he would receive a few days' training in the Ashbourne store on health and safety topics; and one week's training in the respondent's Blanchardstown store.
5.7. In closing, complainant drew the Tribunal's attention to the fact that, according to the respondent's evidence (see para 5.8 below), none of the persons who secured a position as night-pack staff in the respondent's Ashbourne store were older than 39 at the material time. He also stated that although the respondent sent him a letter to advise him of his lack of success at interview, and stated it would keep his details on file in case a suitable position arose, he was not contacted when the respondent advertised for staff again shortly after the alleged events occurred. He stated his belief that this is evidence of the respondent's discrimination of him.
5.8. The respondent submitted a table annexed to the company's original submission prior to the hearing, which shows the ages and retail experience of all 16 successful candidates for the position of night-pack worker. The oldest person hired was born on 24 October 1965, the youngest on 8 February 1986.
5.9. At the hearing, the respondent stated to the Tribunal that of the 80 staff who worked at the Ashbourne store in October 2005, 13 were over 45, eight were over 50, and that the oldest employee was 59; furthermore, that of the people who had been offered positions and rejected them, seven were over 45, two over 50 and one person over 60.
5.10. In subsequent correspondence with the Tribunal, the respondent clarified that these figures were given by age cohort and do not overlap. The respondent further clarified that the rejected positions relate to all positions on offer at the Ashbourne store at the material time, and that one candidate of 61 years of age, and one candidate of 45 years of age, were offered, but refused to accept, the night-pack worker position.
5.11. With regard to the retail experience considered to be desirable for the position of night-pack worker, the respondent's HR Director in its Blanchardstown store, Ms A., stated to the Tribunal in oral evidence that the new store in Ashbourne would be a supermarket open to the public on a 24-hour basis. For this reason, the respondent preferred applicants for night-pack worker positions to have previous experience in the retail field, to be better able to assist members of the public who might be shopping in the store during night-time hours. In addition, night-pack workers might be required to work the cash register. The job specification for night-pack worker was based on the job specification of sales assistant.
5.12. Ms A. emphasised to the Tribunal that the decision not to offer the complainant a job as night-pack worker should not be interpreted as lack of regard for his experience and accomplishments prior to his retirement, or his person in general, on the part of the respondent. She went on to state that she felt that most of the complainant's teamwork experience had been within his own industry and that the complainant therefore lacked the experience in dealing with members of the public which the successful candidates had demonstrated.
5.13. The general principle of the shifting burden of proof is now established under S. 85A of the Acts under which the complainant instituted proceedings, and therefore needs no further reference to case law.
5.14. In Revenue Commissioners v. O'Mahony and ors [EDA033], the Labour Court stated that: "the Court must consider if the complainants have established primary facts on which they place reliance in furtherance of the complaint of discrimination. If those facts are established the Court must then consider whether they are of sufficient significance to raise a presumption of discrimination."
5.15. In the instant case, the complainant was a retired person of 60 years of age when he applied for a position with the respondent and did not succeed. At the time he brought his complaint, he did not have access to any additional evidence in relation to the details of the hiring process, as is common in situations which relate to access to employment under S. 8(1)(a) of the Acts.
5.16. However, from the examination of data submitted to the Tribunal in the course of the investigation, it is evident that while the oldest of the candidates for the position of night-pack worker who were offered the position and accepted it was born in 1965 which made that person 21 years younger than the complainant, there was one candidate of 45 years of age and one candidate of 61 years of age (see para 5.9 above), who were offered the position of night-pack worker and rejected it.
5.17. In light of the fact that the respondents did offer the position in question to candidates that were older than the ones subsequently appointed, but who rejected it, and particularly in light of the fact that one of the candidates who rejected the position was of nearly identical age to the complainant, I find that the complainant does not succeed in establishing a prima facie case of discrimination in access to employment on grounds of age.
6. Decision
6.1. Based on all of the foregoing, I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him pursuant to S. 85A of the Acts, and that therefore his complaint fails.
___________________
Stephen Bonnlander
Equality Officer
11 March 2008