The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-162
PARTIES
Elizabeth Hackett
(Represented by Mr Paddy Hackett)
- V -
Dunnes Stores
(Represented by Byrne Wallace, Solicitors)
File reference: EE/2009/107
Date of issue: 5 September 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Age - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Elizabeth Hackett that she was subjected to discriminatory treatment by the respondent on the grounds of age in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 10 February 2009 under the Acts. On 4 February, 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 May 2011. Additional written information, requested from the respondent was received in the Tribunal on 26 May 2011. Observations in response to that information were received from the complainant on 9 June 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that she has been employed by the respondent since August 2002 as a sales assistant and her duties involved merchandising, register till duties and dealing with customer queries. The complainant's contract of employment is a thirty hour flexi-contract
2.2 In September 2008, the complainant applied for a full-time position (a thirty seven and a half hour contract). The complainant submits that the respondent failed to inform her formally of her failure to get the job and further that she was not given any reason for that failure. The complainant submitted that the successful candidates were all younger than her.
2.3 The complainant submitted shortly afterwards she was moved to the tills and was told that all the "mature ladies were going on the tills".
2.4 The complainant also submitted that she was given two contradictory versions of why she was not appointed to the full time position, firstly she submits that she was told that her interview performance was poor and secondly that her work performance was poor.
2.5 It was submitted on the complainant's behalf that to solely rely on an interview performance for an experienced worker is somewhat bizarre and that the respondent did not take cognisance of her practical experience over those successful candidates.
2.6 It was further submitted on the complainant's behalf that while the evidence in this case is limited, enough still exists to form a presumption of discrimination on the grounds of age.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent denies the complainant's assertions and submitted that the reasons for her being unsuccessful were explained to her on a number of occasions.
3.2 The respondent submitted that the complainant was unsuccessful in her application for a full-time post due to her absenteeism, her timekeeping, her poor register results and her performance at interview. The respondent further submitted that this was repeatedly explained to her and that she was well aware of the fact that she had received a written warning as a result of poor performance in January 2008.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Ms. Hackett on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
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 from which discrimination may be inferred. 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.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 At the hearing of this matter both parties handed in documentation to the Tribunal in order to clarify the matters to hand. The respondent submitted a record of the complainants timekeeping during 2008, and it records 67 infringements over the course of that year. The account of the complainant's absences for the same period records 17 days absence. The complainant's discipline record for her employment with the respondent was also submitted and indicates that 41 verbal and written warnings were issued to the complainant over the course of her employment. These documents were not disputed.
4.5 The respondent indicated that each candidate's performance at interview combined with their employment record was taken into account when offering full-time contracts. The interview notes relating to the complainant were submitted at the hearing in support of this contention. The interview notes relating to the other candidates were submitted, at the request of the Tribunal, following the hearing. These also support the respondent's contention that the employment records and interview performance for each candidate was taken into account when awarding the fulltime positions.
4.7 In relation to the alleged comments made to the complainant regarding "mature ladies" on the tills, evidence was given at the hearing by the person alleged to have made the comment. Ms A, an assistant store manager, gave evidence contradicting the complainant's version of the conversation and provided background information on the composition of the register team which comprised staff of all ages. I found Ms A to be a credible witness and her account of the composition of the register team contradicts the complainants assertion that the 'mature ladies' were move to staff the registers.
4.6 Having considered the complainants evidence in this case, I am not satisfied that the complainant has shown that she was treated in a less favourable manner than others on the basis of her age. I consider that the documentary evidence submitted, sets out the proper context for the consideration of the awarding of full-time contracts. Having regard to the foregoing, I do not consider that the complainant has established, in the first instance, facts from which discrimination may be inferred.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
5 September 2011