DEC-E2014-018

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2014-018

PARTIES

Seamus Quinlan

-V-

The Cleaning Corporation

(represented by Helena Boylan & Co. Solicitors)

File Reference: EE/2010/657

Date of Issue: 20th March 2014

Keywords: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(a)(f) – gender and age, Section 8(1) – access to employment , burden of proof - Section 85A , no prima facie case.

1. Dispute

1.1 This dispute concerns a claim by the above named complainant that he was discriminated against by the above named respondent on the gender and age grounds, in terms of Sections 6(1), 6(2)(f) of the Employment Equality Acts 1998-2011 and contrary to section 8 in that he alleges that he was discriminated against in relation to access to employment.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 30th August 2010 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on 24th September 203 to me, Marian Duffy, 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 the complainant on the 1st of April 2011 and from the respondent on the 24th of May 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 30th September 2013 and the final correspondence was received on the 5th of February 2014.

3. Summary of the Complainant’s Case

3.1 The complainant said that he has worked as a cleaner for over 20 years and he was looking for a cleaning job with the respondent from 2003 onwards. He stated that he failed to get any of the cleaning jobs advertised. He said that from 2003 onwards cleaning jobs were regularly advertised at Knock Airport on the local radio. He said that the first 3 times he applied for cleaning jobs he was requested to send in his CV, but he heard nothing further from the respondent. In 2006 a cleaning job was again advertised and he telephoned the respondent about the advertisement. He said that he was informed that his details were on the file, but that he lived too far from the airport. The person he spoke to told him that she needed staff who lived as close to the airport as possible and he lives about 10 miles from the airport and he submits that he could get to the Airport in 15 or 20 minutes. He said that he passed through Knock Airport on many occasions and noticed that all the cleaning staff are female. He believed he was getting no response from the respondent because of his gender and on the next occasion the cleaning jobs were advertised he asked his wife to ring the respondent. He said that she got a response straight away and was offered an interview.

3.2 In the summer of 2010, a cleaning job was again advertised by the respondent on the local radio and he applied for the position. He was working part-time as a cleaner in a school during term and was unemployed during the summer. He was seeking a more permanent job and wanted to work closer to home. He said that he spoke to the respondent and she asked him where he lived and if he was working. He explained the position to her and told her if he got this job he would give up the part-time work. He said that he was told that his details were on file and that she would get back to him. He said that he was not called for interview. He then called her and was informed that the job had been filled.

3.3 The complainant’s wife said that the complainant was never called for an interview despite all the applications he had made. In 2006 the complainant did not get any response to his application and she decided to ring up the number advertised on the radio. She said that she spoke to a woman who asked for her name and number and offered her an interview. She was then given a date and time for the interview. She said that she had no experience as a cleaner and was in fulltime employment and had no intention of going for the interview. She believes that that the respondent only recruits females and this was the reason she was offered the interview.

4. Summary of the Respondent’s case

4.1 The respondent denies that the complainant was discriminated against on the gender or age ground in relation to access to employment. She said that she runs a cleaning company and has a number of cleaning contracts including one at Knock Airport since 2003. The conditions under which the respondent carries out the contract is determined by the airport authorities. There are very strict aviation security restrictions in place. Cleaners on all shifts have to be flexible because staff can only be assigned for Airport duties from a pool of security cleared and trained staff. Therefore she does not recruit staff that are not totally flexible to cover any shift which is short staffed at very short notice. The gender or age of a person is not criteria which she uses to select staff.

4.2 The respondent had a vacancy for a part-time cleaner in July 2010 and it was advertised on the local radio. It was made clear in the advertisement that flexibility on shifts was an essential requirement. Shortly afterwards the complainant spoke to the respondent about the job and expressed an interest in it. The respondent said that he informed her that he was working part-time in the VEC from 4pm to about 8pm, but he was available for weekend work on Saturday and Sunday. He did not indicate that he was prepared to give up that job if he obtained the position. The complainant was not selected for interview because he did not meet the criteria for the position. He was not available for work when required because of his part-time job.

4.3 The respondent said that she had no recollection of the complainant telephoning her prior to the 2010 advertisement seeking work or providing a CV. The job advertisement states that the applicants contact the company on a telephone number. The respondent said that she keeps a record of all of the telephone calls in a book and there is no record of the complainant’s call. She said that she picks out people for interview on the basis of the telephone call. She tries to assess their suitability based on their location and flexibility. She said that while location was important but it was not a deciding factor. She said that some of the shifts were very short and she makes this known to the applicants. If applicants live far away the short hours may not suit them and it may not be worth their while travelling long distances. Most of her cleaning staff lives within 10 to 15 minutes of the Airport. In 2010 she had 40 applications. She spoke to 35 people on the telephone including 10 males. She called 7 for interview 2 males and 5 females and appointed 3 females. In 2003 when she initially got the contract she recruited 6 cleaners; 2 male and 4 female. In 2006 she recruited 2 females; 2007 1 male; 2009, 1 male and 2010, 3 females. She said that she has 12 cleaners working at the Airport 8 females and 4 males plus 2 female supervisors.

5. Conclusions of the Equality Officer

5.1 The issue for decision in this case is whether or not the respondent discriminated against the complainant on the gender and age grounds, in terms of section 6(1) and 6(2)(a) and (f) of the Employment Equality Acts, 1998 to 2011 and contrary to section 8 of those Acts as regards access to employment. Section 6 of the Acts provides inter alia:

6.—(1) "For the purposes of this Act and without prejudice to its

provisions relating to discrimination occurring in particular circumstances,

discrimination shall be taken to occur where—

(a) 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) (in this

Act referred to as the ‘‘discriminatory grounds’’) which—

(2) As between any 2 persons, the discriminatory grounds (and

the descriptions of those grounds for the purposes of this Act) are—

“(a) that one is a woman and the other is a man (in this Act

referred to as ‘‘the gender ground’’),

......

(f) that they are of different ages, but subject to subsection (3)

(in this Act referred to as ‘‘the age ground’’),

Section 8 provides:

“8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,”

and Section 85A of the Acts provides:

"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

5.2 This Section requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him, his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

5.3 The complainant submits that he was discriminated against on the gender and age grounds in relation to access to a cleaning job in the respondent company. He said that there was a general policy of discrimination on the gender ground and in support of this he said that he noticed that when he passed through the airport all the cleaners were female and when his wife telephoned pretending she was looking for the job she was given an interview. He outlined a number of times he telephoned seeking an interview and on each occasion he was unsuccessful. The respondent denies that there is any policy in place to employ only female cleaners and submits that 4 out of the 10 cleaners employed on this contract are male. It was also submitted that the company has other cleaning contracts and employs a total of 50 people and has a good mix of both male and female employees.

5.4 I note that the respondent had specific requirements for the Airport contract due to the security restriction and clearance required for staff to work there and one of these requirements was flexibility so that staff who had security clearance could do a shift at very short notice. In relation to the last application complained about in 2010, I note from the complainant’s own evidence and submission to the Tribunal that he worked in the VEC for 5 evenings per week and in his submission he stated he was seeking early morning shifts and weekend shifts from the respondent. The respondent said she did not select him for interview because he could not do a shift at short notice and he did not make her aware he intended giving up the VEC job if he was successful at the interview. I am satisfied that the complainant was not selected for interview because he did not meet the flexibility criterion required by the respondent. I note that the respondent has both male and female cleaners employed on the airport contract and furthermore the complainant was called for interview by the respondent for a cleaning position on another contract. I am satisfied therefore that the respondent does not have a policy of employing only female staff. For the foregoing reasons the complainant has failed to establish a prima facie case of discriminatory treatment on the gender ground.

5.5 The next matter I have to consider is whether the complainant was discriminated against on the age ground. There is no evidence to support the complainant’s claim that the respondent only recruited younger applicants. The following are the ages of the cleaners employed on the airport contract:

The complainant is in the 50 to 60 age group and I note that the respondent has 4 employees in his age group and 2 in the higher age group. It is clear therefore that the respondent did not have a policy of selecting younger employees. Having regard to totality of the evidence adduced, I find that the complainant has failed to raise a prima facie case of discrimination on the grounds of age in relation to access to employment.

6. Decision

6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011: I find that the respondent did not discriminate against the complainant on the gender and age grounds pursuant to sections 6(1) and 6(2)(a) and (f) and contrary to section 8(1) of the Acts in relation to access to employment.

_______________________

Marian Duffy

Equality Officer

20th March 2014

DEC-E2014-018