DEC-E2015-012

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2015-012

Geraldine Butler-Duffy

versus

Boots Ireland Ltd.

(represented by David Farrell, Irish Business and Employers Confederation)

File Number: EE/2012/641

Date issued: 23rd March 2015

Keywords: Employment Equality Acts, Age, Access to employment

Dispute

1.1 The case concerns a complaint by Ms Geraldine Butler-Duffy that Boots Ireland Ltd discriminated against her on the grounds of age regarding access to employment contrary to Section 8(1)(a) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the Acts’].

1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on 17th December 2012. On 29th August 2014 in accordance with his powers under Section 75 of the Act, the Director delegated this case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a hearing was held on 23rd September 2014.

Summary of the complainant’s case

2.1 The complainant applied (online) for the position of Health Care Assistant with the respondent for their new store in Galway Shopping Centre. She was invited for interview on 11th October 2012. When Ms Butler-Duffy attended for interview Ms A (Manager) asked her for some form of identification. The complainant gave her Driver’s License which had her date of birth on it.

2.2 Ms Butler Duffy submits that from then on she felt Ms A was going through the motions as she knew Ms Butler-Duffy’s age. The complainant maintains that it was strange that she was asked how to recommend purchasing suntan lotion to an older person. Ms A did not take notes while interviewing her and interrupted Ms Butler-Duffy during the shopfloor test.

2.3 The complainant submits that she was not surprised when she heard she was unsuccessful. She submits that this was because of her age - she was 56 at the time she filed her complaint. She said the experience dented her confidence. Ms Butler-Duffy requested the interview notes which she subsequently received. The interview notes said (twice) that Ms Butler-Duffy had previously worked in Roches Stores. This is incorrect; the complainant never worked for that employer.

Summary of the respondent’s case

3.1 The respondent has over 70 stores in the Republic of Ireland. It submits that is an Equal Opportunities Employer and that the age-range of people working in their Republic of Ireland stores is from 16 to 70. The respondent states it is their policy to look for some form of identification but denies that this is to check an applicant’s age.

3.2 The respondent conducts an in-store exercise as part of the interview. The purpose of this is to assess the applicant on whether they can adapt their advice to be relevant to the customer and see their selling skills. In direct evidence, Ms B denied that she abandoned the interview but merely was assisting a customer with a query when Ms Butler-Duffy could not. Ms B found the complainant weak on selling skills as well as merchandising ability. That is why she did not obtain the position.

3.3 Regarding stating on the interview notes that Ms Butler-Duffy had worked in Roches Stores, Ms B acknowledges that she did write this. While that was not correct, Ms Butler-Duffy did work in a concession store within the shopping centre that contained Roches Stores (now Debenhams) and that the shopping centre is often colloquially referred to as Roches in Galway.

3.4 The following table shows the demographic of people working in Boots Ireland Ltd in August 2014:

While the respondent admits that their workforce tends to be younger, they submit this does not differ from other pharmacy retailers and is a reflection of the demographic that apply for jobs with them.

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 ground in this case is age. Therefore, the issue for me to decide is whether the complainant was discriminated by the respondent in relation to access to employment. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.

4.3 I do not find that the respondent asking for proof of identification to be discriminatory. Neither do I find the scenario presented to the complainant at interview asking her how to recommend sunscreen for mature skin to be ageist. While the interviewer did make a mistake about where the complainant previously worked, it is an understandable error in the circumstances of this case and is not enough to shift the burden of proof of discrimination. I also accept the respondent’s contention that Ms B did not abandon the interview; she merely tried to assist a customer when the complainant (through no fault of her own) could not. All employees of Boots Ireland Ltd received diversity training. The respondent also provided me with the interview notes of all the candidates for the position which Ms Butler-Duffy was interviewed for and I do not find the process was tainted by discrimination. Therefore, the complainant has failed to establish a prima facie case of discrimination on the ground of age.

Decision

5.1 I have concluded my investigation of Ms Butler-Duffy’s complaint and hereby make the following decision in accordance with Section 79(6) of the Acts:

the complainant has failed to establish the facts from which it may be presumed that she was discriminated on the grounds of age.

Therefore I find against the complainant.

_______________

Orlaith Mannion

Equality Officer