FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : MCENIFF GRAND CANAL HOTEL LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - VYTAUTAS JURKSA DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 1st April, 2010. A Labour Court hearing took place on the 19th November, 2010. The following is the Court's Determination:
DETERMINATION:
The case comes before the Court pursuant to Section 83 of the Employment Equality Acts, 1998 to 2008 (the Acts). The Complainant, Mr Vytautas Jurksa, is appealing against a Decision of the Equality Officer made under Section 79(6) of the Acts that the Respondent, McEniff Grand Canal Hotel Ltd, did not discriminate against him on the age ground pursuant to Section 6(1) and 6(2) (f) of the Acts and contrary to Section 8(1) of the Acts and that it did not victimise the Complainant on the age ground contrary to Section 74(2) of the Acts.
Background
The Respondent Hotel advertised a vacancy for a Night Porter in November 2007. The Complainant applied for the post and was invited to interview on 10 November 2007. Following the interview the Complainant wrote to the Respondent enquiring as to whether or not his application had been successful. He was advised by email that he would not be offered the job. The job was offered to another applicant. The Complainant formed the view that he had been discriminated against on the age ground with regard to access to employment and that he had been victimised contrary to the provisions of the Act. He submitted a number of complaints to the Equality Tribunal under Sections 6(1), 6(2)(f) and 74(2) of the Acts.
The matter was investigated by an Equality Officer who found against the Complainant on all grounds. The Complainant appealed this decision to the Labour Court.
Complainant’s Case
The Complainant told the Court that he did not get the job because of his age. He drew the Court’s attention to the terms of the advertisement which stated:-
- "This is an excellent opportunity for a highly motivated individual to be part of young and exciting hotel team."
He submitted that this indicated a preference for a person of a young age and was contrary to law. He drew the Court’s attention to the Annual Report of the Equality Authority for 2007. The Report referred to an exchange of correspondence that took place between the Authority and Tall Tales Theatre Company regarding a playwright workshop for “young female writers”. The Authority accepted that the reference to female writers was a positive discrimination measure. However, the Theatre Company accepted that it would not repeat the use of the term “young” in future advertisements.
The Court’s attention was also drawn to the notes of the interview taken by the Respondent’s Manager to the effect that she came to the conclusion that he was looking for a more senior position. The Complainant submitted that “senior” in this sense should be read relative to age and not to a position within the Company. He said this further reinforced the Respondent’s intention to seek a younger person for the post.
In the event the person offered the job was in his early 20s and had less experience than the Complainant. The Complainant at that time was 30 years of age. He submitted that this amounted to discrimination on the age ground.
He further submitted that in the course of the interview he had advised the Company that he had been treated badly by his previous employers and that he was considering taking action against them under various pieces of labour legislation.
Finally, he submitted that he had scored full marks on the interview assessment form and consequently was entitled to be appointed to the post unless there was another reason to deny him the post. He said that reason was the Respondent’s desire for a younger person.
The Respondent’s Case
The Respondent submitted that the Complainant applied for a post of Night Porter. He was interviewed for the job and found not to be suitable for appointment. The Complainant enquired after the interview, by email, whether or not he had been successful. He was advised that he had performed well at interview but that he would not be offered the job.
The Respondent submitted that the Claimant's employment record showed that he held a series of short term jobs and it was concerned about this. I
The Respondent’s Manager submitted that having interviewed the Respondent she formed the view that he was seeking a more senior role than that of Night Porter. The Respondent felt he would not therefore be a suitable appointment.
The Respondent presented evidence to the Court to show that the age spread of its employees ranged from early twenties to mid-fifties.
The Respondent submitted that the Complainant misunderstood the interview scoring form. He had confused the total marks allocated to each heading with the actual scores he had been allocated thereunder. The Respondent submitted that it came to the conclusion early on in the interview that the candidate was unsuitable for appointment to the advertised post and consequently did not award scores to him.
The Respondent submitted a further later email from the Complainant in which he thanked them for their interview and asked them to keep him in mind for future vacancies.
The Respondent said that it had received 217 applications for the job. It shortlisted a small number of them including the Complainant. Only one candidate was successful as there was only one vacancy. Age was not a factor in the appointment. Furthermore, the difference in age between the successful candidate and the Complainant was negligible.
The Respondent argued that no prima facie case of discrimination has been made out by the Complainant. The Court was referred to the decisionin Teresa Mitchell v Southern Health Board (DEE011).
The Court was also referred to the decision in the case ofGraham Anthony and Co v Margetts (EDA038)in which the Court said
“it is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the marital status, family status or age of the complainant influenced the decision of the employer”
The Court’s attention was also drawn to the decision inPatrick Walsh v Institute of Technology Sligo (DEC-E2004-047)in which the Equality Officer stated that:-
"It is my sole function to determine whether the selection process was discriminatory on the age ground”
Findings of the Court:
The Court notes that the age spread of the staff of the Respondent shows no signs of age discrimination in its employment practices. However, that in itself does not necessarily mean that there was no such discrimination in this case.
The Court notes that the Respondent advertised a vacancy for a Night Porter for which the Complainant applied. The advertisement referred to the“young and exciting hotel team”.He submitted a C.V. in which he recorded his date of birth. From this it was possible for the Respondent to calculate his age at that time. Despite this the Respondent short listed him for interview. The use of the term “young” was inappropriate. However, it is clear to the Court that it did not disadvantage the Complainant as it did not prevent him being called for interview.
At interview the Respondent formed a view that the Complainant was unsuitable for appointment to the post. The interviewer came to the conclusion that the Complainant was seeking a more senior position. The Court understands senior in this context to refer to a post with higher responsibilities. It is a common term and is not normally understood to relate to one’s age. This view was formed on the basis of the C.V. presented which set out the Complainant’s educational achievements and his employment experience to date. The Complainant’s educational background includes third level degree qualifications and would not normally be pertinent to a post of Night Porter.
The Court is also satisfied that the Respondent assessed the Complainant’s performance at interview and came to a reasonable conclusion, unrelated to the Complainant’s age, that he was not to be offered the vacant position.
The Court finds that the Respondent came to a reasonable conclusion based on his performance at interview and on the information provided to it by the Complainant regarding his educational and career achievements, that he was not the best fit for the vacancy advertised.
The Court therefore finds that age was not a factor in the selection process and accordingly that 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.
Determination:
The Court rejects the appeal and upholds the Equality Officer’s Decision.
Claim of Victimisation
The Court must now determine if the Complainant suffered victimisation contrary to Section 74(2) of the Acts.
Findings of the Court
No evidence was presented to the Court to support the Complainant’s contention that he was victimised contrary to the Acts when he was not selected for the position. The Court has found that the reason he was not offered the post was based on the C.V. he submitted to the Respondent and on his performance at interview. Accordingly, the Court finds that the Complainant has failed to establish a prima facie case of victimisation in relation to access to employment.
Determination:
The Court rejects the appeal and upholds the Decision of the Equality Officer.
Signed on behalf of the Labour Court
Brendan Hayes
28th June, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.