THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-020
Evelina Pontso Raleting
versus
Edmund Rice International Heritage Centres Ltd
(represented by Neil Fitzpatrick, L&P Group)
File reference: EE/2008/036
Date of issue: 7th February 2011
Keywords: Employment Equality Acts, Gender, Marital Status, Family Status, Religion, Access to Employment, Training, No prima facie case
1. Dispute
1.1 This dispute concerns a complaint by Evelina Pontso Raleting against Edmund Rice International Heritage Centres Ltd. The complainant alleges that she was discriminated against on the grounds of gender, marital status and religion in relation to access to employment and training contrary to the Employment Equality Acts 1998 -2008 [hereinafter referred to as 'the Acts'].
1.2 The complainant referred her complaint under the Act to the Director of the Equality Tribunal on 22nd January 2008. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 9th November 2010 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 16th December 2010 as required by Section 79 (1) of the Act. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Summary of the complainant's case
2.1 The complainant submits that she was employed as a full-time Project Administrator with the Information and Support Unit of the respondent for a fixed term contract of fifteen months. Her position was advertised towards the end of the fixed-term contract. She applied but was not called for interview. When the complainant enquired as to why she was not kept on, she was told the position had changed and other skills were required to fulfill the role. The complainant disputes that the duties of the post changed significantly. Comparing the job descriptions of the position she had and the one advertised - she submits that only two functions had changed, report-writing and IT skills. She submits that had she been trained up she would have been able to do the new job. The complainant maintains that only €300 was spent on training for her. She submits that she was refused a course entitled 'PR's place in the not-for-profit sector 'as there was no remaining funding. She submits that her manager did not want to retain her.
2.2 The complainant changed religion to Islam in September 2004. The then Director of the Information and Support Unit Br A was a member of the (Roman Catholic) Christian Brother order and was from Pakistan originally. According to the complainant, he said that women in his country who convert to Islam lose many of their rights.
2.3 On the ground of gender, the complainant suffered a miscarriage in October 2006 and was absent for two weeks. She submits her manager was not happy about her absence.
2.4 The complainant submits that occasionally, due to unforeseen circumstances, she had to leave work early to collect her children. She believes the respondent was not supportive of this and that this was discriminatory on the grounds of family status.
2.5 Her main bone of contention is not that she did not get the position but that she should have been interviewed for it as she had been working with the respondent for fifteen months.
Summary of the respondent's case
3.1 The Edmund Rice International Heritage Centres Ltd is wholly owned by the two religious congregations founded by Edmund Rice: the Christian Brothers and the Presentation Brothers. It oversees a number of ministries including the Information and Support Unit where the complainant worked. This unit aims to assist refugees, asylum seekers and other immigrants that make up the new communities in Waterford. This includes English language classes, a refugee legal service, a drop-in centre and teenage integration programmes.
3.2 When the unit was formed, the complainant was employed as a Full-time Project Administrator/Receptionist in September 2006. The complainant reported to a full-time Project Worker. Both salaries were dependent on State funding so both employees were employed on fixed term contracts until 31st December 2007. As the Information and Support Unit received less funding for 2008, the Steering Group decided it could not justify having a Project Administrator/Receptionist as a full-time role. A new position was created - an Assistant Project Coordinator The new role was to involve report-writing as well as administrative duties. The position was advertised in the local newspapers. There were five applicants. They were assessed using score sheets (which have been submitted as evidence) by a selection panel consisting of the then CEO of Edmund Rice International Heritage Centres Ltd, the Director of the Information Support Unit and a member of the Steering Group. Three people were shortlisted and subsequently interviewed. They submit that the complainant was not called for interview as the short-listed applicants were much more suitable. The respondent maintains that it would be unfair to interview people who were not short-listed for the sake of interviewing them.
3.3 The respondent rejects that the complainant was discriminated on the ground of gender. They state that they were supportive of her following her miscarriage and encouraged her to take as much time as she needed.
3.4 Regarding the ground of martial status, the respondent loaned chairs for her wedding which they submit would indicate that they did not discriminate on the grounds of marital status.
3.5 In relation to family status, the respondent maintains that on consecutive days, the complainant collected her children from school at 1:00 and they remained in the office until she finished work at 5:00. The respondent acknowledges it raised this issue with her as the reception area was not a suitable environment for children and the complainant was distracted from her work.
3.6 Regarding making comments about the complainant changing religion, in a written witness statement Br A said ' This came up in a general conversation and was not targeted at Evelinah. I spoke in general about women in Pakistan not having many rights and having to cover their heads'. The respondent submits that the provision of chairs for the complainant's Islamic wedding shows that the respondent did not discriminate against her. It further submits that the person appointed to the position of Assistant Project Coordinator is not Roman Catholic. The successful candidate is a Jehovah's Witness.
3.7 Regarding the provision of training the respondent submits that the complainant went on six training courses during her fifteen months employment and disputes the figure of €300 spent on training the complainant. They admit they did not send her on the training course she requested but they submit that was because it was not relevant to her work.
4. Conclusions of the Equality Officer
4.1 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. The discriminatory grounds in this case are race, family status, marital status and religion. Section 85A of the Act 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 she can rely in asserting that she suffered discriminatory treatment. 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.
4.2 The issues for me to decide are:
(i) Was the complainant discriminated against on the grounds of gender, marital status, family status, religion and race regarding access to employment?
(ii) Was the complainant discriminated against by the respondent in terms of training on the same grounds?
Access to Employment
4.3 In relation to the grounds of gender, marital status and family status, the successful candidate is also a married woman with children. Where the complainant and the person who obtained the position differ are the grounds of race (which includes nationality or ethnic or national origins) and religion. Both the complainant and the person selected are African; however, Ms Raleting is South African while the successful candidate is Nigerian. The complainant's religion is Islam while the person doing the job is a Jehovah's Witness.
4.4 I requested the application forms of the all the applicants. The respondent has mislaid the other application forms but I received a copy of the complainant's and the successful candidate's forms. While it is regrettable that the other application forms have been lost, I did not find convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified as the candidate that obtained the position. While I note that the complainant objects to not being short-listed for interview, a prospective employer reserves the right to select candidates for interview so long as this is not done in an unlawful way. No evidence has been adduced to me that the selection process was tainted with discrimination. Consequently, the complainant has failed to establish a prima facie case of discrimination on the grounds of gender, marital status, religion, race and family status in relation to access to employment.
Training
4.5 The respondent submitted evidence of the complainant attending six training courses during her fifteen months of employment with them. The complainant did not dispute this. While the respondent did not send Ms Raleting on a training course that she had requested, I accept the respondent's contention that it was not relevant to her work. No evidence was adduced to me that would make me think that a man of a different nationality and/or marital status and/or religious belief and/or family status to the complainant would be afforded better or worse access to training. Therefore, a prima facie case of discrimination has not been established by the complainant in relation to training.
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
the complainant was not discriminated on the grounds of race, marital status, religion and family status regarding access to employment contrary to 8 (1)(a) of the Acts
the complainant was not discriminated on the grounds of race, marital status, religion and family status regarding access to employment contrary to 8(1)(c) of the Acts
Therefore, I find against the complainant.
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 all applications and notes of selection processes are retained for competitions for contracts of employment within the meaning of the Acts.
_______________
Orlaith Mannion
Equality Officer