Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-063
PARTIES
Kelly
(With John F. Walsh & Company Solicitors)
- V -
Nevinar Cosmetics Limited
(With Solomon Legal)
File references: EE/2008/051
Date of issue: 6 May 2010
File references: EE/2008/051 - DEC-E2010-063
Keywords
Employment Equality Acts - Discriminatory Treatment - Promotion/re-grading - Family Status - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Ms. Clare Kelly (hereafter "the complainant") that she was subjected to discriminatory treatment contrary to the Employment Equality Acts by Nevinar Cosmetics Limited (hereafter "the respondent") on the grounds of her family status. The complainant stated that having successfully completed the a round of interviews for a sales representative role she was called in for a subsequent interview on 7 January 2008. The complainant submitted that she was asked inappropriate questions about her family status and that offensive statements were made.
1.2. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 30 January 2008 under the Employment Equality Acts. This claim was made on the family status ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - on 30 November 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 March 2010. Further relevant information, concerning the complainant's salary, was received on 27 April 2010.
2. Case for the complainant
2.1. The complainant, a parent, submitted that she worked on the respondent's counter in a busy shopping centre since 2001. The applicant had previous experience working in a similar role. During her time with the respondent she performed exceedingly well increasing the respondent's turnover significantly. The complainant initially worked full-time.
2.2. It was submitted that when the complainant returned from maternity leave in 2005 her hours were reduced to 22.5 hours per week. These hours were maintained when the complainant returned from her second maternity leave in June 2007. She was informed that the role of an accounts manager was no longer available to her and that she was given the role of accounts assistant. The complainant was working to a named employee who had been given the role of accounts manager during the complainant's maternity leave. It was submitted that the respondent's treatment of the complainant on her return from maternity leave constitutes discrimination on her family status.
2.3. It was submitted that the complainant contacted her named supervisor to discuss the situation. The complainant was told that she should be patient as a sales representative position would be arising in the near future. The applicant believed in her future in the company and notwithstanding her treatment decided to trust her employers to reinstate her to a job commensurate with that which she had been employed. The discriminatory situation that the complainant found herself in was compounded by this false assurance that the complainant would be given an sales position equivalent in status to her accounts manager position.
2.4. It was submitted that the applicant attended an interview in December 2007. The interview was conducted by a named managing director and a sales manager. The complainant had been told that her first interview had gone well and that she had been called for a final interview with the respondent's chairman on 7 January 2008. The complainant submitted that she was never told that there had been a first round of interviews while she was on her holidays.
2.5. It was submitted that the complainant had prepared intensively for the second interview. During this meeting, the respondent engaged in small talk and would not discuss the job in substance. The complainant realised that she was not being considered for the job because the respondent asked the complainant questions such as "how old are the children", "who minds them? - If my wife told me she was going out to work and I was to mind the kids I would tell her where to go?" "Why did your husband leave his job?" What car do you drive, ... you wouldn't be seen driving a woman's car ..." "You know I used to think you were a great girl." The complainant felt that the respondent did not engage in an interview but instead subjected the complainant a monologue which consisted of remarks indicating why he considered the complainant unsuitable for the job.
2.6. It was submitted that the managing director contacted the complainant. He prefaced his remarks by stating that he would deny having made them, but that the reason why the complainant did not get the job was because she had children. The complainant believes that the successful applicant did not have as much experience as the complainant and that she did not have any children.
2.7. It was submitted that the interview and selection process in relation to the sales position outlined above constitutes discriminatory behaviour on the part of the respondent. It was submitted that the discrimination is by reason of the conduct of the interview and the subsequent explanation given to the complainant for her failure to be selected for the job. Furthermore, it was submitted that the successful candidate was relatively inexperienced compared with the complainant.
3. Case for the respondent
3.1. The respondent denies that it discriminated against the complainant in any way. It was submitted that the complainant is a well regarded colleague and capable member of the team. It was submitted that the respondent would not have gone to such effort to include the complainant in the interview process if it had any reason to presume that the complainant would not be fully capable to performing the duties of the new role.
3.2. It was submitted that the respondent employs mainly women (95%) and that on average 5% of the female workforce would be on maternity leave in any given year.
3.3. It was submitted that the general manager had been in the company for a period of 9 to ten months. The general manager refutes ever stating that the reason why the complainant did not get a job was because of the fact that she has children.
3.4. In relation to the interview. The interview was entirely conducted by named general manager and named sales manager. All candidates were asked the same questions. The successful candidate was decided on her work experience as a travelling sales representative which the respondent considers to be more suitable to the role of the sales representative. Furthermore, it was submitted that the complainant did not have any combined travel and selling experience unlike the successful candidate. The respondent submitted the complainant's contract of employment, interview notes concerning the successful candidate and the complainant and their curriculum vitae.
3.5. The respondent denies that the meeting with the chairperson was part of the interview process. The chairperson met with all of the four candidates, one of whom he met after the decision had been communicated to the successful applicant.
Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' (Mitchell v Southern Health Board [2001] ELR 201) before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters (EDA/0917) where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. The salient facts of this case are as follows. The complainant was called for an interview in relation to a position as a sales representative. She was one of four candidates to be called to this interview. I accept that a previous round of interviews had taken place but due to the fact that the complainant was away on annual leave at the time the respondent invited her to partake in the second round. I note that the complainant had no concerns about the way in which this interview was conducted. In direct evidence, she described the formal interview as being very professional with no reference to children or her family status. The complainant submitted that she may have even mentioned her children herself and the fact that she was now in a position to undertake travel. I have no issue with the manner in which the recruitment process was managed to this point.
4.3. However, it is clear that the complainant did get a call from the head office a few days later and met with the chairperson. I note that parties would not agree about the manner in which the meeting came about or the nature and purpose of the meeting between the complainant and the chairperson. Having considered the facts presented to me, I am satisfied that the meeting took place; that the complainant was specifically requested to come to the head office for such a meeting; and that, considering the fact that the complainant had recently been to what she viewed as a first interview, the complainant considered this to be a meeting about the promotion that she was seeking. I do not accept the respondent's statement that this was a chance meeting where the chairperson just asked the complainant to step into his office for an informal chat while she was collecting stock from the head office. I accept the complainant's evidence that she only visited the head office when there was a specific reason to do. I therefore accept that the complainant travelled to the head office because the chairperson had made an appointment with her. I also accept that the chairperson and the complainant discussed the sales manager role at this meeting. While I note that the chairperson did not accept that he made such remarks about the complainant's family situation (he did accept that he would have asked about her kids having known her for a long time), I am also mindful of the fact that he did not categorically deny making such remarks but submitted that it would be "unusual for him to say such things". I find the complainant's recollection of the discussion to be more convincing. While I acknowledge that the remarks made may not have been exactly as reported, I am satisfied that the conversation that took place was highly inappropriate for such a situation and that the complainant became very conscious of her family status.
4.4 Furthermore, I am satisfied, based on the respondent's own evidence, that one of the reasons for this meeting was for the chairperson to determine that the relatively new general manager had not made a mistake in his selection of the suitable applicant. While the chairperson denied that he was in any way involved in the actual decision making process about the promotion, he did admit that he had the power to influence the outcome of the selection process. While I note that he categorically stated that he did not do so in this case, I am satisfied that the chairperson did exercise a veto.
4.5. In the High Court decision Davis v. Dublin Institute of Technology [1999] No. 4935pCt5 Quirke J. refers, in a case concerning gender, to the need for Tribunals - such as this one - to look at primary findings of fact in determining discrimination cases and whether there is a significant difference between the qualifications and experience between the successful and unsuccessful candidate together with the protected ground. I have not been presented with such facts. While I note that there are some differences, on the whole, both applicants appear to be similarly qualified for the position.
4.6. However, I find that it is impossible to discern from the facts what followed after the meeting with the chairperson. It was submitted that while both the complainant and the successful applicant performed extremely well at the interview, the successful candidate's travel and promotional experience was deemed more suitable for the position. I note that the employees stated in direct evidence that the chairperson did not influence the decision making, that the decision about the successful candidate was made before the chairperson met with the complainant and that the chairperson accepted their nomination without any interference. I also accept that this is what employees would say in circumstances like these. There is sufficient case law to indicate that courts and tribunals have accepted that respondents who discriminate will rarely do so overtly and leave evidence of such discrimination within the complainant's power of procurement. In Glasgow City Council v Zafar [1998] 2 All E.R. 953, a case that has been recognised as an authority by the Labour Court in Ntoko v Citibank [2004] 15 E.L.R. 116, the courts have established a test for determining whether a person is being discriminated against unlawfully. In the circumstances of this case, I find that the complaint has satisfied the first two parts of the test and, by applying the latter parts, I am satisfied that the evidential burden has shifted to the respondent to prove that they did not treat the complainant less favourably because of her family status. I note that the chairperson stated that he had a veto on the appointment and that the reason why he met with the applicants was partly influenced by the fact that he wanted to make sure his general manager had not made a mistake. This means that the chairperson's approval was essential to the selection. I note that the successful applicant was notified after the chairperson met with the complainant. I find that the existence of such a veto, with a person who is outside the recruitment process, has tainted the entire recruitment process with an inference of discrimination on the family status ground that, in these circumstances, cannot be rebutted.
4.7. The need for a transparent and consistent recruitment and selection process is well established in law. There is also well established precedent for the need to keep the interview or any dialogue relevant to the job specification. I find that an applicant's childminding arrangements are not appropriate topics for discussion in such contexts.
4.8. In relation to the complainant's return from her maternity leave. It is clear that the complainant's hours were reduced at her request and that while her title changed her pro rota salary and terms of employment remained the same. Furthermore, while her title may have changed, I note that she was viewed effectively as a account manager by the respondent. That is, the changes of her job title did not mean that she was not considered for the position with the same qualifications and skills expected from a counter manager. I do not accept that the respondent would not engage with the complainant about this issue and note that she admitted that she may have been a bit 'lax' about following up on her concerns. I do not find that the respondent discriminated against the complainant on the family status ground in relation to these matters. Furthermore, I do not find that the outcome of the selection process discussed above was influenced by these matters.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has established a prima facie case of discrimination on the family status ground. The respondent has failed to rebut this. Therefore, in accordance with section 82(4)(b), I order the respondent to pay the complainant €15.000 in compensation for the effects of the discrimination.
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Tara Coogan
Equality Officer
6 May 2010