EQUALITY OFFICER'S DECISION NO: DEC-E/2014/056
PARTIES
Bernie Kinsella
(Represented by Daniel Spring & Co. Solicitors)
V
G4S Secure Solutions (Ireland) Limited
FILE NO: EE/2011/775
DATE OF ISSUE: 12 August, 2014
1. Dispute
This dispute involves a claim by Ms. Bernie Kinsella that she was discriminated against by G4S Secure Solutions (Ireland) Limited on grounds of gender in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, in relation to access to employment, conditions of employment, dismissal, harassment, victimisation and victimisatory dismissal.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 on the 22nd of November, 2011 alleging that the respondent had discriminated against her on grounds of gender in relation to her conditions of employment, dismissal, harassment, victimisation and victimisatory dismissal. She has also submitted that the failure of the respondent to consider her for subsequent employment amounts to discrimination in relation to access to employment.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 3rd of February 2014 to me, Orla Jones, 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 all parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 24th of March, 2014. Final correspondence in relation to this matter took place on12th of May 2014.
3. Summary of complainant’s case
3.1 It is submitted that the complainant was employed by the respondent, on a fixed-term contract commencing in March 2010 and which terminated on 23 May 2011. The complainant was employed as a security officer and was one of 9 employees of G4S working in the Museum of Country Life. She was the only female employee of G4S in this role.
3.2 The complainant’s contract was to last as long as the Cross of Cong stayed at the Museum.
3.3 The complainant was the only member of staff who did not have her own set of keys and had to repeatedly ask for keys. All other security staff had a key fob but the complainant was not given one for 3 months despite requesting same.
3.4 The complainant as well as reporting to her supervisor in the respondent company was also answerable to Mr. O in the client organization.
3.5 On 2 March, 2011 Mr. Q the respondent Area Manager offered the complainant a transfer to a post in Claremorris and told her that this would be the only vacancy open to her on a continuing basis. The complainant was told by colleagues that the reason her male colleague in Claremorris wanted to move from there was due to the fact that the post involved the cleaning of toilets which he did not want to do. The complainant submits that she was offered the job in Claremorris because she was a woman.
3.6 Following this the complainant spoke with Mr. C who was in charge of the Museum and was not an employee of G4S. She asked Mr. C if he was happy with her work and he confirmed that he was.
3.7 Upon learning that that the complainant had spoken to the client about this matter Mr. Q the respondent Area Manager was annoyed and following this the complainant was rostered to work nights only with no day shifts.
3.8 Mr. H, Manager of the respondent organization told the complainant in April 2011 that she would no longer have a job when the Cross of Cong left the Museum but that she would be brought back at the first vacancy. This did not happen. Despite repeated conversations with and excuses from Mr. H in which the complainant was promised that she would be reemployed she was never again offered work by the Respondent.
3.9 In September 2011 Mr. K was reemployed by the respondent despite having less experience (just one day of training) than the complainant who had 4 years experience in the industry.
3.10The complainant submits that she was told that Mr. Q and Mr. O had said they would not work with her again and that Mr. O had said he would be afraid of an unfound allegation of sexual assault
4. Summary of respondent’s case
4.1 In July 2009, G4S won the contract for the provision of security services at the National Museum of Ireland which included the Museums premises at Turlough House. A permanent crew of 6 security officers and one supervisor were transferred to the site. The site supervisor was Mr. M to whom the security staff reported and Mr. M reported to Mr. Q, Contracts Manager.
4.2 In July 2010 the respondent was advised that the Cross of Cong would be displayed at the Museum for a period and that extra security would be required for the duration. As a result the complainant and Mr. K were recruited on fixed term contracts from the 23rd of March 2010 to 31st of December, 2010. Mr. D an additional temporary security officer was recruited in October 2010.
4.3 The period of exhibition of the Cross of Cong was later extended but the respondent was not given a definite end date. At that stage extension contracts were given to all 3 temporary staff including the complainant. These contracts stated that their employment would terminate on the departure of the Cross of Cong from the National Museum of Ireland. All 3 contracts were subsequently terminated on 23rd of May 2011.
4.4 Security staff on site were employed by G4S and took day to day instruction from Mr. M site supervisor. The client liaison on site was Mr. O
4.5 In March 2011 a member of the respondent’s staff at Claremorris requested a transfer. At this time the team in Claremorris had agreed to take on cleaning duties in an effort to reduce costs and preserve jobs in the location. At the time it was an all male team. The position was offered to all three temporary staff members including the complainant on the basis that she had a temporary contract which was due to finish in a few months. When Mr. Q offered the position to the complainant she accused him of being sexist.
4.6 When the respondent’s staff were deployed to the Museum, the duties of the additional staff were interchanged with those of the permanent team from the outset in order to reduce the monotony of the work which would have been assigned to the temporary officers otherwise. The respondent was advised in March 2011 that the Cross of Cong was leaving the museum and so the rosters were adjusted so that the permanent staff returned to their regular duties and the temporary staff covered the additional duties required by the Cross of Cong. These changes were implemented from 15th of March, 2011.
4.7 It is submitted that these changes affected all staff but did impact more on temporary staff irrespective of their gender.
4.8 The complainant’s contract was terminated once it had achieved its purpose i.e. the Cross of Cong was removed from the premises.
4.9 The complainant was not offered re employment on grounds of suitability and was unrelated to gender.
5. Findings and Conclusions of the Equality Officer
5.1 Discrimination
5.1.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her conditions of employment and in relation to her dismissal. I must also decide whether the complainant was harassed on this ground and/or victimised in relation to her dismissal and in relation to her working conditions. I must also decide whether the respondent’s failure to re-hire the complainant amounts to discrimination in relation to access to employment. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.1.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.1.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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)…..” Sections 6(2)(a)(b) and (c) of the Acts define the discriminatory ground of gender, as follows – “as between any 2 persons, ...
(a) that one is a woman and the other is a man,..
5.2 Allegations re Key fob and Keys
5.2.1 The complainant advised the hearing that she was employed by G4S as a Security Officer She stated that she was the only female Security Officer. The complainant advised the hearing that Mr. O (who was the client liaison officer ) was out on sick leave when she started and that she knew he wasn’t happy when he returned to work and saw that she was a female security officer. The complainant advised the hearing that she was the only female member of security staff and that she was the only one who was not provided with Keys or a Key Fob. She stated that she asked Mr. O on a number of occasions for a key and that eventually she said to him that it was “like sex discrimination here as all males have keys”. The complainant stated that following this Mr. O returned to the office and threw a set of keys across the table at her before asking her to sign for them. The complainant stated that this had happened in May 2010. The complainant advised the hearing that she was also the only employee who didn’t have a Key fob and stated that she had to ask the cleaning ladies to let her in. The complainant stated that she raised this issue with Mr. O adding that it is discrimination that all males had a key fob and she didn’t. The complainant stated that Mr. O then left and came back about 15 minutes later and gave her the fob. Mr. O also suggested that she share a fob with Mr. K another temporary security officer.
5.2.2 The respondent at the hearing stated that it had no knowledge that the complainant was left without a fob or keys and stated that it was up to the client organization who was the employer of Mr. O to provide keys and key fobs. The respondent went on to state that the complainant was one of three temporary security officers employed for the duration of the Cross Of Cong residing at the museum and stated that none of the three temporary security officers had keys or key fobs. The respondent went on to state that it was suggested that the complainant share the fob she was given with Mr. K another temporary security officer as he did not have one either. The respondent advised the hearing that the complainant did not need a key or key fob as it was possible for the cleaning ladies to let her in due to the times of her shifts. The respondent stated that Mr. K and Mr. D the other temporary officers who are male were in the same position and that it was unrelated to gender but related to their positions as temporary security officers.
5.2.3 The complainant at the hearing stated that she was not aware that Mr. K and Mr. D did not have keys or key fobs but acknowledged that she had been asked to share her fob with Mr. K. I am satisfied from the totality of the evidence adduced in relation to this matter that the delay in providing the complainant with keys and a key fob was related to her position as a temporary staff member and was unrelated to her gender. I am thus satisfied that the complainant was not discriminated against or harassed by the respondent on grounds of gender in relation to this matter.
5.3 Discrimination and harassment re working conditions
5.3.1 The complainant advised the hearing that she had been at work one stormy morning in January 2011 when she received a phone call requesting her to close off the car park. The complainant stated that at the time of the call her colleague Mr. J was out doing rounds and so she couldn’t leave the office unattended she stated that Mr. O stormed in to the office at 9.05a.m. and when she explained to him that she could not leave the office to close the gate as she had to wait for Mr. J to come back from his rounds Mr. O shouted at her “when you’re given an order obey it” before marching out of the office. The respondent at the hearing stated that they had no knowledge of this incident but that they were aware that there was a personality clash between the complainant and Mr. O. Mr. O was not present at the hearing. The complainant has not provided any nexus to her gender in relation to this aspect of her claim and thus I am not satisfied that this amounts to discrimination on grounds of gender. Accordingly I am satisfied from the totality of the evidence adduced here that the complainant was not discriminated against or harassed on grounds of gender in relation to this matter.
5.4 Transfer offer
5.4.1 The complainant advised the hearing that she was called in to the office one day in March 2011 and was told by Mr. Q that she was to be transferred to Claremorris. The complainant stated that she asked why she was to be moved and that Mr. Q told her that there was a male colleague looking to transfer out of Claremorris. The complainant advised the hearing that she refused the transfer and told Mr. Q that she couldn’t go as she would need her own car to work in Claremorris, and at the time she shared a car with her husband. The complainant stated that Mr. Q told her that there would be no more work for her if she didn’t go to Claremorris. The complainant advised the hearing that the post in Claremorris also entailed cleaning duties and she was of the view that this was the reason the male staff member in Claremorris was seeking a transfer and the reason it was offered to her. The respondent advised the hearing that all three temporary staff were offered the post in Claremorris as it was nearing the end date of their temporary contracts and so it was assumed that one of them would be glad of the opportunity to get additional work. The respondent stated that Mr. K was also offered the transfer and that he also refused it. The complainant at the hearing acknowledged that she was aware that Mr. K had also been offered the transfer to Claremorris. The respondent stated that the post did entail cleaning duties as did all of the posts in Claremorris as the team in Claremorris had previously agreed to take on cleaning duties in an effort to reduce costs and preserve jobs in the location. At the time it was an all male team. The position was offered to all three temporary staff. The respondent had submitted that the complainant when offered the position by Mr. Q had accused him of being sexist. He then clarified by stating that she had said she was only being offered the transfer because she was a woman. The complainant advised the hearing that the post in Claremorris also entailed cleaning duties and she was of the view that this was the reason the male staff member in Claremorris was seeking a transfer and the reason it was offered to her. The respondent when questioned as to whether it had taken any action on foot of this allegation advised the hearing that no action was taken. It is clear from the evidence adduced here that the complainant was not the only person offered the transfer to Claremorris and that the transfer was also offered to Mr. K. Thus it is clear that the offer of a transfer to Claremorris was not influenced by the complainant’s gender as it was also offered to individuals of a different gender. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against or harassed by the respondent on the ground of gender in relation to this matter.
5.5 Reprimand re complaint to client
5.5.1 The complainant advised the hearing that she had following the suggestion of her transfer to Claremorris spoken to Mr. C who was in charge of the Museum and was not an employee of G4S. The complainant told him what had transpired in relation to the transfer to Claremorris and she asked Mr. C if he was happy with her work and he had confirmed that he was. The complainant went on to state that the following day upon learning that that the complainant had spoken to the client, Mr. C about this matter the respondent area manager Mr. Q became very annoyed and warned that any of the respondents staff who spoke to Mr. C from then on would be disciplined or sacked. Mr. Q advised the hearing that he was annoyed that the complainant had raised the issue with the client and stated that he had advised the complainant that she was not to complain to Mr. C in the future but could raise issues with the respondent via the grievance procedure.
5.5.2 The complainant advised the hearing that Mr. Q then went down to the canteen and changed the roster completely. The complainant stated that he took the roster off the wall and when he returned with a new roster, he advised the complainant and Mr. K that they would be getting no more day duty or house duty (which entailed 12 hour shifts) but that they were from now on only getting shifts in the museum at night which were 15 hour shifts covering nights. The respondent at the hearing acknowledged that such changes were made to the roster but stated that they were applied to all three temporary staff and so were unrelated to gender. The respondent stated that the reason for these changes was due to the fact that they now had a definite date for the departure of the Cross of Cong and so in preparation for things returning to normal had decided to return their full time staff to their normal shifts thus releasing them the pattern of alternating shifts with the temporary staff. This meant that the temporary staff were to be assigned only to the Cross of Cong duties which entailed 15 hour shifts covering nights. The complainant advised the hearing that she was the only member of staff who actually worked nothing but 15 hour shifts and night shifts after that date. The complainant stated that Mr. K’s roster had also been changed but that after a few days he was returned to working day shifts and 12 hour house shifts. The respondent at the hearing stated that it may have been the case that Mr. K was covering for others. The complainant advised the hearing that she had requested day shifts after this date but was refused and told that she was solely on Cross of Cong duty and 15 hour night shifts. The complainant stated that there had been no change to the roster of the third temporary staff member as he had stated from the outset that he would only be available for night duty. In addition it also emerged at the hearing that the changes to the roster were made at a time when a roster already in place and had already been drawn up for the relevant period.
5.5.3 The complainant advised the hearing that following the change in the roster she again met Mr. C and told him what had transpired. Mr. C asked the complainant to write down what had happened which she did. The complainant advised the hearing that following this Mr. C requested to talk with Mr. H, Manager of the respondent organization who was Mr. Q’s superior. The complainant advised the hearing that on 12th of April, 2011 Mr. H came to the museum to have a talk with her and apologized for the way Mr. Q had spoken to the complainant. Mr. H also advised the complainant that she would no longer have a job when the Cross of Cong left the Museum as per her contract but that she would be brought back at the first vacancy. This did not happen. In fact Mr. K who was less qualified than the complainant was subsequently given work after his contract had expired. Despite repeated conversations with and excuses from Mr. H in which the complainant was promised that she would be reemployed she was never again offered work by the Respondent. The complainant has submitted that the changes to her roster and the action by the respondent in assigning her to 15 hour shifts only following her complaint in relation to being offered a transfer, amount to victimisation.
5.6 Victimisation
5.6.1 It is submitted by the complainant that following her complaint of discrimination to Mr. Q and later to Mr. C the roster was changed and she was assigned night shifts only with no day shifts and that she was also assigned Museum duty only which entailed 15 hour shifts only with no 12 hour shifts as were available in Turlough Park House itself and that this amounts to victimisation under section 74(2) of the Employment Equality Acts, 1998-2011. Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
5.6.2 In Tom Barrett v Department of Defence[1] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
(i) The complainant, in identifying the protected act, referred to her complaint to Mr. C about the transfer and also to the fact that she complained to Mr. Q that she was only being offered the transfer due to the fact that she was a woman and the post entailed cleaning duties. I am satisfied that the complainant’s complaint of gender discrimination to the Mr. Q and subsequently to Mr. C on 15th of March, 2011 amounts to a protected Act for the purpose of this Section.
(ii) The complainant submits that, following her complaint to Mr. Q and Mr. C, the roster was changed and she was assigned to work nights only in the Museum which entailed 15 hour shifts, and that this was due to the fact that, she had made a complaint of discrimination against the respondent. The complainant at the hearing outlined the shifts, to which she was assigned. The complainant advised the hearing that all other staff members had better rosters and that no one else was assigned night shifts only in the Museum with no day shifts or 12 hour shifts. The complainant also stated that the fact that she was assigned to work in the Museum only from that point on meant that the shifts she worked were always 15 hour shifts instead of 12 hour shifts. The complainant submitted that this treatment continued until the end of her contract.
5.6.3 Witness for the respondent, Mr. Q, advised the hearing that the roster was changed on this date but stated that this was due to the fact that they now had a definite date for the departure of the Cross of Cong from the Museum and so a decision was made to return all permanent staff to their normal shifts and to keep the temporary staff on Cross of Cong duties only. The respondent did not however provide any reason as to why this decision was made. The respondent had stated earlier that it had been decided to divide the Cross of Cong duties between permanent and temporary staff in order to avoid the monotony for temporary staff being assigned to Cross of Cong duties only. It is not clear and no reason was given as to why it was then decided in advance of the departure of the Cross of Cong to return the permanent staff to ordinary duties and assign temporary staff to Cross of Cong duties only. In addition it emerged at the hearing that despite submitting that all temporary staff were assigned to Cross of Cong duties only after the date in question, it emerged that Mr. K another temporary staff member was in fact assigned day shifts and shifts in the house which were 12 hour shifts and that Mr., D was not in any way affected by the change in the roster as he had requested nights only from the outset. It thus appears from the evidence adduced that the complainant was the only person who was affected by thechange in the roster which took place on the day after her complaint was made and following a statement by Mr. Q that no one was to complain to the client or that they would be sacked or dismissed, a direct reference to her complaint. In addition it emerged at the hearing that the changes to the roster were made on a day when the roster for the coming week had already been drawn up and so it was also out of the ordinary for a new roster to be drawn up when one was already in existence for the period in question. It emerged that the new roster was drawn up on a Tuesday even though the roster was already drawn up for that week and ran from the previous Monday to the following Sunday.
5.6.4 Having carefully assessed all of the evidence in relation to this matter, I have found the complainant’s evidence to be more consistent than the evidence given by the witness of the respondent. I am thus satisfied from the totality of the evidence adduced her that the change in the roster which affected only the complainant was as a direct result of her complaint. I am also satisfied that the changes in the roster which resulted in the complainant being allocated night shifts only and no day shifts as well as 15 hour shifts only and no 12 hour shifts amounts to adverse treatment of the complainant. In addition, I am satisfied that the alleged adverse treatment can be linked to the complainant’s complaint to Mr. Q and later to Mr. C and thus the alleged adverse treatment occurred as a reaction to the protected act, as set out by the Labour Court, in the Barrett determination, and her complaint that she was victimised contrary to the Acts succeeds. Accordingly I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was victimised by the respondent in relation to this matter.
5.7 Discriminatory/Victimisatory Dismissal
5.7.1 The complainant has submitted that she was employed by the respondent on a fixed-term contract commencing in March 2010 and which terminated on 23 May 2011. The respondent has submitted that the complainant’s contract was for a fixed term and was due to end on 31st of December, 2010. The respondent advised the hearing that the complainant was one of three temporary security officers recruited as extra security was needed due to the arrival of the Cross of Cong at the National Museums premises at Turlough House. At the hearing both parties agreed that the complainant’s initial contract was a fixed term contract with an end date of 31st of December, 2010. The complainant advised the hearing that she received a second contract on 1st of November 2010 which was a ‘fixed purpose’ contract and which indicated that she was to be employed until the departure of the Cross of Cong from the Museum. The respondent agreed with this and stated that the period of exhibition of the Cross had been extended but that they had not been given a definite end date. The complainant advised the hearing that she had been promised a full time post with the respondent by Mr. M prior to her employment with the respondent and prior to her signing the contract. She stated that Mr. M had told her of the upcoming post which was due to the arrival of the Cross of Cong but stated that he had told her that she would be kept on full time once the Cross went back. The complainant however did state that she had applied for the post which was linked to the Cross of Cong stay at the Museum and that she had signed a contract in this regard. The complainant advised the hearing that Mr. M later told her that the respondent would be getting rid of her once the Cross of Cong was gone. It emerged at the hearing that Mr. M who was employed as a supervisor by the respondent did not have any authority to promise the complainant a full time post and it was clear from the complainant’s contract that she was employed initially until the 31st of December, 2010 and following that on a fixed purpose contract until the departure of the Cross of Cong from the Museum. The complainant had received the same contract as her colleague Mr. K in this regard and Mr. D who was taken on in October 2010 for the same purpose.
5.7.2 The complainant at the hearing acknowledged that she had been employed on a fixed term contract initially and then on a fixed purpose contract. The complainant did not provide any evidence in support of her expectation that she was to be kept on full time after the departure of the Cross of Cong other than a claim that Mr. M had promised her that she would be kept on, a promise which she stated he later revoked as he advised her that they were going to “get rid of her”. I am satisfied from the evidence adduced, that the complainant had received and understood both of her contracts of employment and that she had been given no undertaking by the respondent that her current employment was to last beyond the purpose for which she had been employed. The complainant has submitted that her dismissal was discriminatory in nature and was due to her gender, however I am satisfied that the employment of the complainant and that of Mr. K, who was of a different gender, was terminated in accordance with the terms of her contract of employment and was unrelated to her gender. Accordingly I am satisfied, from the totality of the evidence adduced in relation to this matter that the complainant was not discriminated against on grounds of gender in relation to her dismissal.
5.7.3 The complainant has also submitted that her dismissal was victimisatory and submits that it took place following a complaint of discrimination and harassment. I am satisfied from the totality of the evidence adduced in relation to this matter that that the employment of the complainant was terminated in accordance with the terms of her contract of employment and was unrelated to any complaint of discrimination and harassment. Thus I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant’s dismissal was not influenced by her earlier claim of discrimination and accordingly she was not victimised in relation to her dismissal.
5.8 Access to employment/failure to re hire complainant
5.8.1 The complainant has submitted that the failure to re hire her following the end of her contract was due to her gender. The complainant has submitted that she was never re hired by the respondent but that Mr. K who had less experience than her was subsequently re hired. The complainant advised the hearing that Mr. K who had less experience than her was rehired some months later. The complainant advised the hearing that she had 26 months experience working in security and that Mr. K had only 6 months experience.
I note the complainant submitted that she was the most suitable candidate based on her level of experience. In O’Halloran v Galway City Partnership EDA077, the Labour Court stated:
“Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”
5.9.6 I must also bear in mind the fact that the reason for an impugned decision may be conscious or subconscious and refer to the approach taken by the Labour Court in Nevins Murphy Flood V Portroe Stevedores Limited [2005] 16 ELR Det. No. EDA051
“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
5.9.10 The Labour Court in Nevins Murphy Flood V Portroe Stevedores Limited [2005] 16 ELRDet. No. EDA051 made reference to the quality of evidence to be expected from a respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal in Britain, the Court, in Barton v Investec Henderson Crosthwaite [2003] IRLR 322, held that
since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden
5.8.2 The complainant advised the hearing that she had been told by the respondent specifically by Mr. H, that she would be the first person to be re-employed that she would be re hired as soon as something else came up. The respondent at the hearing did not deny this. The complainant advised the hearing that Mr. K had been re hired some months later and that she, despite being more experienced than Mr. K had not been called back. The complainant stated that she had contacted the respondent on a number of occasions asking if there was any work available but had received no response. The complainant stated that she had approached Mr. H in September after she had heard that Mr. K was reemployed. The complainant advised the hearing that Mr. H told her that they had tried to contact her but that she was away on holidays and that they needed security so they had to get Mr. K instead. The complainant stated that she had not been away and that she had received no indication that anyone had tried to contact her.
5.8.3 The respondent when questioned at the hearing as to why Mr. K was reemployed and the complainant was not, stated initially that the particular client had requested Mr. K personally for the job. The respondent could not however provide any documentary evidence in support of this claim. The respondent later stated that Mr. K was re hired due to the fact that he was more experienced than the complainant. The complainant advised the hearing that she had 26 months experience working in security and that Mr. K had only 6 months experience. The respondent at the hearing did not dispute this but stated that that Mr. K had had previously been in the Defence forces and that it counted as experience, however the respondent could not say what Mr. K’s experience in the Defence Forces was or whether it was in the area of security or how it was relevant to the job apart from to state that it was ‘regimented’ and there was a ‘uniform’.
5.8.4 Having carefully assessed all of the evidence in relation to this matter, I have found the complainant’s evidence more consistent than the evidence given by the witnesses of the respondent. I find that the inconsistency in the evidence of the respondent, in particular in relation to the reason why Mr. K was re hired and the complainant was not, forces me to look elsewhere for a reason as to why Mr. K was re hired and the complainant was not. In this regard I look to the reason provided by the complainant which is that it was due to her gender. I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has established a prima facie case of discrimination on grounds of gender which the respondent has failed to rebut. Thus I am satisfied that that the complainant was discriminated against on grounds of gender in relation to this matter.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the respondent did not discriminate against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of the following matters
– the delay in providing the complainant with keys and a key fob
– the complainants treatment by Mr. O in relation to the closing of the car park
– the offer of a transfer to the Claremorris
– the complainants termination of employment at the end of her contract
(ii) that the respondent did not harass the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to Section 14A (7) of those Acts in respect of the following matters
– the delay in providing the complainant with keys and a key fob
– the complainants treatment by Mr. O in relation to the closing of the car park
– the offer of a transfer to Claremorris
(iii) that the respondent did not victimise the complainant following a complaint of discrimination contrary to section 74(2) of the Acts in relation to the following matters
– the complainants termination of employment at the end of her contract
(iv) that the respondent did discriminate against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of the following matters
- the respondents failure to re hire the complainant
(v) that the respondent did victimise the complainant following a complaint of discrimination contrary to section 74(2) of the Acts in relation to the following matters
– the changes to the roster which resulted in the complainant being rostered to work nights only and 15 hour shifts following a complaint of discrimination
6.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld.
6.3 In considering the redress in this case, I am mindful of the fact that I have found that the complainant has been subjected to discrimination on grounds of her gender and victimisation following a complaint of discrimination. In addition, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the remuneration which the complainant was in receipt of at the relevant time, and the length of time she was employed by the respondent I consider an award of compensation in the sum of €17,000 to be just and equitable.
6.4 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination and victimisation. This component of the award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
____________________
Orla Jones
Equality Officer
12 August, 2014
Footnotes
[1] EDA1017