The Equality Tribunal
Employment Equality Acts
Equality Officer's Decision
DEC-E2011-248
Parties
Vytautas Jurksa
versus
Greencaps Ltd (Platinum Airport Services)
(represented by Irish Business and Employers Confederation)
File reference: EE/2008/480
Date of issue: 19th December 2011
Keywords: Employment Equality Acts, Gender, Access to Employment, Discriminatory advertising, Victimisation.
1. Dispute
1.1 This dispute concerns a complaint by Vytautas Jurksa, against Greencaps Ltd (Platinum Airport Services). The complainant alleges that he was discriminated against on the grounds of gender in relation to access to employment contrary to the Employment Equality Acts 1998-2011 [hereinafter referred to as the 'Acts']. He also has referred a complaint of victimisation.
1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 15th July 2008. In accordance with his powers under Section 75 of that Act, the Director delegated the case on 26th October 2011 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a hearing was held on 14th December 2011.
2. Summary of the complainant's case
2.1 Mr Jurksa saw an advertisement in FÁS office stating 'A female customer agent is required for position in Dublin airport'. The complainant submits this is discriminatory on the grounds of gender. This advertisement was also on the FÁS website. He phoned the respondent at 16.28 on 31st January 2007 and was told it was for female applicants only. Nevertheless, he emailed his CV. At 16.50 on the same date, he phoned again and again was told 'we are looking for female applicants at the moment. There may be vacancies for men at a later time'
2.2 On 14th March, he emailed to find out the status of his application. The following day he received a response 'Hi Vytautas. The position has been filled but I will keep your name on file'.
2.3 He then submitted a complaint to the Tribunal. He is seeking compensation for distress, loss of income incurred and for the damage to his profession reputation. He cites Equality Authority v Ryanair as an authority.
3. Summary of respondent's case
3.1 Greencaps Ltd (Airport Platinum Services) was established in 1995 with the aim of placing long-term unemployed people in the Ballymun area in employment. The respondent submits that it had significant success over the year in assisting individual with either entry to or a return to the employment market.
3.2 One of the contracts held by the respondent was the supply of Customer Service Agents in the departure areas of Dublin Airport. The Customer Service Agents assisted U.S immigration officials by pre-checking documentation to avoid queues forming. Over time, the Customer Service team had developed to be predominantly female. The respondent maintains this was not deliberate; generally male employees requested to work elsewhere in the airport e.g. portering duties. The employee who placed the advertisement was a trainee with no experience in Human Resources Management. She saw that it was mainly women who worked on that team and was eager to show that she was capable of working on her own initiative. This is why she placed the advertisement with FÁS without asking a line manager to proofread it first. The respondent submits that she was merely trying to demonstrate efficiency and that she did not intend to discriminate.
3.3 However, The respondent admits that the advertisement was discriminatory. The General Manager apologised to the complainant in writing and at the hearing. As soon as he (the General Manager) realised a discriminatory advertisement had been placed, he submits that he ensured it was removed. The seriousness of the issue was explained to the relevant employee and procedures were set up so that it would not happen again. Regarding access to employment, they did not prevent Mr Jurksa's application. They submit that they interviewed both male and female candidates for the position. They ultimately selected a female candidate but they submit that is because she both her written application and performance at interview demonstrated enthusiasm for the position.
3.4 The respondent points out that the complainant never raised either the issue of the discriminatory advertisement or discriminatory access to employment directly with them.
4. Conclusions of the Equality Officer
4.1. The issue for me to decide is whether or not Mr Jurksa was discriminated on the grounds of gender in terms of Section 6(2)(a) of the Acts by Greencaps Ltd in relation to access to employment contrary to Section 8 (1) (a) of the Acts. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. In reaching my decision, I have taken into account almost all of the submissions, written and oral, made by the parties. I have excluded a phone conversation that Mr Jurksa had with an employee of the respondent as it was covertly recorded by him i.e. .he did not advise this employee that he was recording the conversation.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus sifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
4.3 The complainant alleges discriminatory treatment on two counts
(i) discriminatory advertising
(ii) discriminatory treatment in the selection process.
Discriminatory Advertising
4.4 The complainant has referred to the seminal Equality Authority v Ryanair case. However, he appears to be confusing the powers of the Equality Authority under Section 85 (1) (d) i.e. the power of the Equality Authority to refer a complaint to the Director of the Equality Tribunal in relation to the publication or display of a discriminatory advertisement with the rights of an individual to refer a complaint under Section 77 of the Acts.
4.5 Section 10 provides that:
10. -- (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.
(3) Nothing in this section relates to an advertisement which, or
to the extent to which it, specifies a requirement, restriction or other
matter which relates to employment and which it would not be
unlawful for the employer in question to impose, having regard to
any other provision of this Part or of Part III or Part IV.
(4) A person who, with a view to securing publication or display
of an advertisement in contravention of subsection (1), makes a statement
knowing it to be false shall, upon such publication or display,
be guilty of an offence.
(5) Without prejudice to subsection (4), if an advertisement is published
or displayed and it appears to the High Court or the Circuit
Court, on the motion of the Authority, that there are grounds for
believing that publication or display of the advertisement may be in
contravention of subsection (1), the court may grant an injunction
preventing the appointment of any person to any post to which the
advertisement relates until --
(a) the decision of the Director on a contemporaneous reference
under section 85 of the publication or display of the
advertisement, or
(b) the court otherwise orders,
and, for the purpose of this subsection, a reference under section 85
shall be regarded as contemporaneous with a motion if it is made on
the same day as the motion or not more than 14 days earlier or later.
(6) The jurisdiction conferred on the Circuit Court by subsection
(5) shall be exercised by the judge for the time being assigned to the
circuit where the person by whom the advertisement was published
or displayed (or caused to be published or displayed) ordinarily
resides or carries on any profession, business or occupation.
4.6 The respondent has conceded that the advertisement in the FÁS office and on the FÁS website seeking a female customer service agent is discriminatory on the grounds of gender. However, Section 85(1)(d) provides that only the Equality Authority has the power to refer complaints to the director regarding discriminatory advertising in contravention of Section 10. There is no provision for individual complainants to refer such a claim.
4.7 The reasoning for this is explained in the Committee stage Seanad debate for the Employment Equality Bill 1997 which became the Employment Equality Act 1998. During this debate, an amendment was proposed to allow an individual with a particular interest in the matter as well as the Equality Authority to refer a complaint of discriminatory advertising to the Director. The Government opposed the amendment and it was not moved because 'As the publication of such an advertisement is considered a public interest issue rather than an issue which affects any one individual, if individuals were allowed to refer such cases to the courts one advertisement could result in the unnecessary reference to the courts of a multiplicity of cases...Some who perceive there to be discrimination as a result of an advertisement can made a complaint to the Equality Authority who can pursue the matter as a public interest issue'.
4.8 It is clear from this that it was intention of the legislature that such claims may not be referred by individuals. Therefore, the complainant does not have locus standi to bring a complaint in relation to the discriminatory advertisement.
4.9 Regarding access to employment, the complainant has raised a prima facie case of discrimination on the ground of gender. The advertisement is clearly discriminatory and the person ultimately selected was a woman. However, I accept the respondent's contention that men did apply for the position and were interviewed. I accept that Mr Jurksa was not called to interview because of his abrupt telephone manner rather than because he was a man. I am satisfied that the person appointed as a Customer Service Agent was selected because she demonstrated an aptitude for the position rather than because of her gender. Therefore, the respondent has rebutted the inference of discrimination in relation to access to employment i.e. the complainant was not treated less favourably because of his gender.
Victimisation
4.10 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.11 Therefore, victimisation as defined in the Employment Equality Acts is different to its colloquial meaning. It must be a reaction to one or more of the above actions. No evidence was presented to me that would indicate that the complainant was treated adversely because of referring a complaint of discrimination within the meaning of the Acts. Therefore, Mr Jurksa has failed to establish a prima facie case of victimisation.
Decision
I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) the complainant does not have locus standi to refer a complaint regarding discriminatory advertising within the meaning of Section 10 of the Acts
(ii) the complainant was not discriminated on the ground of race regarding access to employment contrary to 8 (1)(c) of the Acts.
(iii) the complainant was not victimised within the meaning of Section 74 of the Acts
Therefore, Mr Jurksa's complaint fails.
Recommendation
As the complaint has not been upheld, I am not in a position to make an order for the respondent to undertake a particular action. However, I would recommend to the respondent that it conduct a review of its recruitment policies and procedures to ensure that they comply with the Acts.
_______________
Orlaith Mannion
Equality Officer