THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 210
PARTIES
Ms. Mary Hanrahan
and
Kilkee Bay Hotel Limited
(In Voluntary Liquidation)
File Reference: EE/2007/489
Date of Issue: 2nd November, 2010
File references: EE/2007/489 - DEC-E2010-210
Keywords - Employment Equality Acts 1998-2008 - Section 6(1)(a) and Section 6(2)(f) - the age ground - Section 8 - discriminatory dismissal.
1. Dispute
1.1 This case concerns a complaint by Ms. Mary Hanrahan. She claims that she was discriminated against by Kilkee Bay Hotel Limited on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts, 1998 to 2008 in terms of her dismissal.
2. Delegation of the complaint
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 8th October 2007. A submission was received from the complainant on 1st September 2008. No submission was received from the respondent. On 18th August 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, James Kelly, 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. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a hearing of the case on 28th September 2010 where both parties were notified by Registered Post. The last correspondence on the matter was received on the 15th October, 2010.
3. Summary of the Complainants' case
3.1 The case concerns a claim by Ms. Mary Hanrahan that she was discriminated against by Kilkee Bay Hotel Limited on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2008, in terms of discriminatory dismissal. It was Ms. Hanrahan's evidence that she was in her late 50's at the time of the alleged discrimination.
3.2 The complainant submits that she commenced employment with the respondent as an Accommodation Supervisor on the 16th March 2007 following an interview with the then General Manager of the hotel. She claims that her main responsibility was to ensure that the hotel rooms and the adjacent hotel apartments were cleaned and tidied between the change over of hotel customers. She claims that she had four cleaning staff reporting to her. She said there was another woman, in a similar position to herself, who worked part time in the hotel, who trained her in. However, she could not remember her name and did not know her age but guessed she was in her 40's. Ms. Hanrahan claims she got on very well the General Manager at the time, whom she claims never came near her and just let her get on with the job.
3.3 Ms. Hanrahan claims that shortly after starting with the respondent the General Manager changed. She claims she first met with the new manager, Mr. A, on the 5th April 2007, where she said that he introduced himself and asked "how I was coping". She claims that he also made a remark about keeping reception updated on all the rooms cleaned. She claims that they happened to meet again two days later on the 7th April when he again asked how she was coping and she found the "comment to be strange". She claims that she replied to him that "[she] was finding her feet and will be fine".
3.4 She claims that on the 8th April 2007, she received a call from the hotel reception and was notified about a complaint from a customer in one of the hotel's apartments. She went to the apartment and met with the family that had just taken up occupancy that day and they pointed to rubbish and a condom on the floor of the apartment and were extremely annoyed. She claims that she removed the items from the floor and told the customers that the room had been cleaned, which seemed to allay their concerns and everything seemed to have been resolved. She said that she did not report the incident to the General Manager. She claims the following day she was called to the General Managers office who told her that she was sacked because of the incident the previous day. She claims that nothing was said to the other members of staff, whom were much younger then her, and that she had been signalled out for this unfair treatment because of her age. She claims that she was not given recourse to proper grievance procedures and that the General Manager would not meet with her to discuss the issue after that date.
4. Summary of the Respondent's case
4.1 The respondent did not furnish a submission in relation to this case. I was informed by letter of 27th September 2010 that the respondent had ceased trading since November 2008 and was in voluntary liquidation and that the Liquidator would not be attending the hearing.
5. Conclusions of the Equality Officer
5.1 The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of age within the meaning of the Acts. 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 and 2008, which states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must first establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....".
5.2 The complainant's responsibilities were to ensure that the hotel rooms and apartments were cleaned before new customers took up occupancy. Her role was to ensure that this was done to a satisfactory manner. Her evidence is that she spent a number of weeks working in the hotel in this role, under the stewardship of another person who trained her in. However, Ms. Hanrahan could not now identify who that person was by name. The complainant said she had a lack of clarity as to what hotel apartments exactly she had responsibility for; she claims she was unsure which apartments belonged to the hotel. Ms. Hanrahan does not dispute that there was an incident regarding the cleanliness of one of the apartments and that she was contacted to address this issue with the customer. She agrees that she did not report the incident to the General Manager. However, when the General Manager became aware of the incident he called her to his office, where he told her that she was dismissed because of what had happened. Ms. Hanrahan claims that she was older than the others working at the hotel at the time and that she was singled out by the General Manager and sacked, accordingly. Ms. Hanrahan is maintaining that these set of events, taken in their entirety, lead to a presumption that the decision to dismiss her was motivated by her age.
5.3 I note that Ms. Hanrahan states that Mr. A's only interaction with her prior to her dismissal was two brief conversations where she felt that his comments in relation to how she was coping were inappropriate. She was of the opinion that this was because of her age and that the subsequent dismissal was also related to her age. In considering this aspect of the claim, I note of the finding of the Labour Court in Arturs Valpeters -v- Melbury Developments Ltd, EDA0917 [2010] 21 E.L.R, where it states that:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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." [Note my emphasis]
5.4 On consideration of the case presented to me, I note that there is a complete lack of satisfactory evidence from the complainant in relation to details including, of her former work colleagues, their names, their roles and responsibilities. Ms. Hanrahan's evidence was lacking certainty as to her own role and responsibility. There is a heavy reliance on presumption and speculation unsupported by factual evidence. I note that she accepts that the receptionist contacted her when the customer complained about the apartment, which would suggest that at least one other employee in the hotel considered her to be responsible for the cleaning of that apartment. I note her evidence where she stated she was unsure whether the apartment was cleaned or not. However, she later stated in evidence that she told the customer that it had been cleaned. The facts here are somewhat confusing and they have not been clarified to my satisfaction. It is not the role of this Tribunal to fill in the blanks where there is a void in the evidence. I am satisfied that there is an absence of factual evidence of sufficient significance to raise an inference of discrimination.
5.5 I also note the decision of the Labour Court in Anthony v Margetts , in particular where it states: "The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred."
Ms. Hanrahan has suggested that she was treated less favourably than another person would be treated in a comparable situation because of her age. She claims that she found that the General Manager was "not very professional" and that his comments were "strange". I note the evidence where it would appear that his only interaction and conversation with Ms. Hanrahan was to ask how she was coping and to ensure that she kept the reception up to date on what rooms were cleaned. I am not satisfied that this is sufficient evidence on which I can infer on the balance of probabilities that the comments were ageist and therefore discriminatory.
5.6 Finally, I note the evidence where Ms. Hanrahan argued the respondent conspired against her to have her dismissed and that fair procedures were not complied with in relation to the dismissal. The issue of unfairness in how the dismissal was conducted is not disputed from the evidence presented. However, this Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal. The issue for me for decision is whether or not the complainant was discriminated against on the grounds of her age in relation to this dismissal. Accordingly, having regard to the complete evidence, I am satisfied that the complainant has failed to establish a prima facie case in relation to the dismissal on the grounds of her age.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
- I find that the complainant has not established a prima facie case of discrimination on the age ground pursuant to section 6(2)(f) of the Acts in respect of discriminatory dismissal contrary to section 8(1) of the Acts.
- Accordingly, I find in favour of the respondent in this matter.
______________
James Kelly
Equality Officer
2nd November, 2010