THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-219
PARTIES
Vytautas Jurksa
-V-
McEniff Grand Canal Hotel Ltd
(represented by Sinéad Mullins IBEC)
File Reference: EE/2008/290
Date of Issue: 8/11/2010
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(f) - age, Section 8(1)) , Section 10 - discriminatory advertisement, victimisation - Section 74(2), burden of proof - Section 85A , prima facie case, Section 85(1)(d) - statutory power of Equality Authority in relation to discriminatory advertisements.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the age ground, in terms of Sections 6(1), 6(2) (f) of the Employment Equality Acts 1998-2008 and contrary to section 8 in that he alleges that he was refused a job because of his age.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 7th May 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 3rd August 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 3rd November 2008 and from the respondent on the 23rd December 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 22nd September, 2010.
3. Summary of the Complainant's Case
3.1 The complainant applied for the job as a night porter in the respondent's hotel. He was called for interview on the 10th November 2007. The complainant said that he had experience of working in hotels and a hostel and believed that he was well qualified for the job. He was unsuccessful at the interview. He said that he was interviewed by the accommodation manager and he understood during the course of the interview that he had got the job because they discussed the rate of pay. He said that the interviewer then asked him about a short term employment he had in another hotel. He said that he told her that he was treated unfairly by his fellow employees during his probation and he believed this occurred because he was from Eastern Europe and they were from Pakistan. He also said that he was going to do something about it.
3.2 The complainant said that he did not get the job because of his age and because the respondent in their advertisement stated "This is an excellent opportunity for a highly motivated individual to be part of a young and exciting hotel team." The complainant said that he was 30 years old at the time and he believed that the company was seeking a younger person and this was the reason he did not get the job. He also submits that he was victimised because the company found out at the interview that he was considering taking a case against a previous employer.
4. Summary of the Respondent's case
4.1 The respondent denies that the complainant was discriminated against in relation to access to employment. The company advertised for the position of night porter in the Grand Canal Hotel. There were 217 applicants and about 30 were interviewed by the accommodation manager. She had a set list of questions which she asked of each applicant. She said that she did not know the age of any of the applicants as it was not a requirement to give it. She said that she explained to the complainant that the main duties involved cleaning the toilets and floors as there was little reception work during the night. The accommodation manager said that she got the impression from the complainant that he was over qualified for the position and he was interested only in a manager or security role. She was of the opinion that he displayed little interest in the job she had on offer. She said that, during the course of the interview, the complainant was nervous, uneasy and restless and his behaviour did not inspire her with confidence that he could do the job. She noted from the complainant's CV that he had spent short periods in 2 other hotels and when she asked him the reason for leaving he gave no explanation. The accommodation manager said it was coming up to Christmas and she needed a person who she felt would stay in the job and she was not confident that the complainant would stay. She said age was not a factor and that the hotel had employed people of all ages from 18 to 53 and all the day porters were in their thirties. The person selected for the position was about 6 years younger than the complainant. While he had no experience in working in a hotel, he was an experienced cleaner and he displayed a relaxed and warm personality and she was of the opinion he was well suited to the position.
4.2 The respondent representative referred me to the Labour Court decision in the case of Flexo Computer Stationery Ltd v Kevin Coulter in relation to the burden of proof in non-gender cases and asked me to apply the reasoning set out in that case in relation to establishing a prima facie case of discrimination.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the age ground, in terms of section 6(1) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards access to employment. I have also to consider whether the complainant was victimised in terms of Section 74(2) of the Acts. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
......
(f) that they are of different ages, but subject to subsection (3)
(in this Act referred to as ''the age ground''),"
and Section 85A of the Acts provides:
"(1) 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".
5.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 I note that the complainant relies on the advertisement to support his case of discriminatory treatment. He submitted that the advertisement was discriminatory and therefore that he was automatically entitled to redress. Section 10 of the Acts prohibits discriminatory advertisements and Section 85(1)(d) sets out the enforcement powers of the Equality Authority and stipulates that they may refer such matters to the Director.
5.4 I will now consider the issues that have been raised by the complainant in relation to access to the position of night porter in the respondent hotel which he contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. The complainant submits that he did not get the job because of his age and he bases this contention on the fact that the word "young" was used in the advertisement for the position. The respondent submits that the age of the complainant was not a factor in selecting the complainant and that the only criteria used in the selection procedure was performance at the interview. They accept that the word "young" was used in the advertisement but stated they were referring to the fact that the hotel was new rather than the age of the person they wanted to recruit. The respondent further submitted that the complainant's performance was not satisfactory in that he did not demonstrate a sufficient interest in the job and he failed to answer crucial questions at the interview and this was the only reason he was not selected. The respondent's representative submitted that the complainant failed to establish facts from which discrimination could be inferred. The first matter I have to consider is the use of the word "young" in the advertisement
Section 10 provides:
" -- (1) A person shall not publish or display, or cause to be published
or displayed, an advertisement which relates to employment
and which --
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an
intention.
(2) For the purposes of subsection (1), where in an advertisement
a word or phrase is used defining or describing a post and the word
or phrase is one which --
(a) connotes or refers to an individual of one sex or an individual
having a characteristic mentioned in any of the discriminatory
grounds (other than the gender ground), or
(b) is descriptive of, or refers to, a post or occupation of a kind
previously held or carried on only by the members of one
sex or individuals having such a characteristic,
then, unless the advertisement indicates a contrary intention, the
advertisement shall be taken as indicating an intention to discriminate
on whichever discriminatory ground is relevant in the circumstances."
5.5 I am satisfied that it was reasonable for the complainant to conclude from the advertisement that the respondent was seeking a young person for the position. I find therefore that the complainant has established a prima facie case of discrimination. It is for the respondent therefore to rebut the inference of discrimination raised.
5.6 I note that the respondent's employees ranged in age from 18 to 53 and the successful candidate was aged 24 about 6 years younger than the complainant. I am satisfied that this evidence does not support the complainant's contention that the respondent only employs young people. The gap of 6 years between the complainant and the successful applicant is insufficient evidence to raise an inference of discrimination. I am satisfied that the applicants CVs' and performance at interview was the selection criteria applied. Likewise I am satisfied from the evidence that the reason that the complainant was not selected for the position solely related to his performance at the interview. Accordingly, I find that the respondent has rebutted the a prima facie case of discrimination on the age ground raised by the complainant.
5.7 I have also considered the complainant's complaint of victimisation. He submits that he was victimised because the respondent failed to select him for the job due to the fact that he disclosed at interview that he was thinking of taking a complaint against a previous employer. The respondent submitted that the disclosure had no bearing on the outcome of the interview.
5.8 I find that the complainant has not produced any evidence to support his contention that he was victimised contrary to the Acts when he was not selected for the position. As I have found above, I am satisfied that the complainant was not selected for the position because of his performance at the interview. Accordingly, I find that the complainant has failed to establish a prima facie case of victimisation in relation to access to employment.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the age ground pursuant to sections 6(1)and 6(2)(f) of the Acts and contrary to section 8(1) of the Acts in respect of access to employment.
(ii) the respondent did not victimise the complainant on the age ground pursuant to section 74(2) of the Acts.
________________________________
Marian Duffy
Equality Officer
8th November 2010