EQUALITY OFFICER'S DECISION NO: DEC-E/2015/101
PARTIES
A Prospective Employee
(Represented by Ciaran Mac Loughlin BL, on the instructions of Hanahoe & Hanahoe Solicitors)
-v-
A Company
(Represented by Tiernan Lowey BL,
on the instructions of DWF Solicitors)
FILE NOs: EE/2012/590 Date of issue: 7th October 2015
1. Dispute
1.1 This dispute involves a claim that the Respondent discriminated against the Complainant on the grounds of her gender in relation to access to employment in terms of the conduct of an interview process contrary to the provisions of the Employment Equality Acts.
2. Background
2.1 The Complainant referred this complaint to the Equality Tribunal on the 16th November 2012. In accordance with his powers under Section 75 of the Employment Equality Acts, the Director, on 2nd February 2015, delegated the case to me, Gary Dixon, 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 on which I commenced my investigation.
2.2 Written submissions were received from each party. As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on the 26th March 2015. At the hearing the Respondent requested that the names of the parties be anonymised in the Tribunal’s decision. The Complainant did not agree with this request. The parties were invited to submit post hearing submissions on the issue and each party submitted a supplemental submission in due course. Final correspondence in the matter took place on 2nd October 2015.
3. Summary of Complainant’s Case
3.1 The Complainant applied for the position of “support worker” with the Respondent in or around September 2012. She had appropriate qualifications (a certificate and a diploma) and relevant work experience for the advertised position. Her application was accepted and she states that after several weeks of preparation for a comprehensive and demanding selection process she was advised that she had been successful in the interview. However, she was subsequently contacted by the Respondent and informed that a male was being recruited for the position.
3.2 The Complainant submits that she had spent a considerable amount of time and effort in preparing for the interview. The selection process was extremely challenging and involved a number of stages.
3.3 The Complainant submits that approximately one week after the interview she was informed by email that “they were looking to recruit a male”. A copy of this email was submitted in evidence. Correspondence between the parties followed in which the Respondent advised, again by email (copy presented in evidence), that it had been explained to applicants on the day of the interview that it (the Respondent) was recruiting for two roles, one of which was a gender specific position and the second was subject to HSE approval. The Complainant does not accept that this fact was explained to her at any time during the process. Further, she does not accept that gender was a genuine occupational requirement for any of the positions.
3.4 The Complainant states that the Employment Equality Acts prohibit discrimination on, inter alia, the ground of gender. She submitted various examples of case law at national, international and EU levels which, she contends, show that the scope of the discrimination prohibited by law is wide and encompasses every stage of employment, including the recruitment stage, i.e. access to employment.
3.5 Section 25 of the Acts provides for a derogation from the general principles of gender discrimination where gender is a bona fide occupational requirement but, the Complainant submits, this must constitute more than mere assumptions by the employer. As a particular example she refers to Brady v Irish TV Rental Ltd. (DEE 8/1985) where a “belief” that male staff would deter robberies from the employer’s premises was held not to constitute a genuine occupational requirement.
3.6 The Complainant states that Section 85A of the Acts deals with the burden of proof in relation to allegations of discrimination and she cites various precedent cases which, she believes, demonstrate that once a prima facie case of discrimination has been established by a Complainant, the burden of proof shifts to the Respondent to prove that there has been no discrimination. A number of cases were cited in this regard. For example, in Dublin Corporation v Gibney (EE 5/1986), the Complainant submits that a prima facie case was defined as –
“…evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.
3.7 In conclusion, the Complainant submits that she has established a prima facie case of discrimination on grounds of her gender within the meaning of the Employment Equality Acts and that, therefore, the Respondent must prove that it did not discriminate against her in relation to this matter.
4. Summary of Respondent’s case
4.1 The Respondent provides therapeutic services in the form of care and support for adults with physical and intellectual needs. It often provides these services to clients on behalf of the Health Services Executive (HSE).
4.2 In autumn 2011 the Respondent was approached by the HSE to explore the feasibility of providing care services for a man who had a troubled history of convictions for sexual offences involving females and who was then resident in a secure nursing home facility. The Respondent states that it initially provided day care services at its care centre to assess the viability of the client being released from the secure environment into a supported living community and during this time he displayed a lack of social awareness and disinhibition in all matters relating to interactions with females. The client was, however, subsequently admitted onto a full time programme with the Respondent as he was deemed suitable for community support in his home. Support workers are assigned to “support teams” in respect of each client and such teams generally comprise an average of two to three members of staff operating on rotating shifts in order to provide dedicated one-to-one care.
4.3 The Respondent submits that it decided it would need an additional staff member to accommodate the admission of this client into a full-time programme. The position of “support worker” was advertised and the Complainant was one of a number of applicants. The Respondent accepts that the advertisement for the post did not specify that it was seeking male candidates because, at that time, it had hoped to establish a panel of successful candidates to fill 3 prospective vacancies and it was engaged in discussions with the HSE in that regard.
4.4 In the circumstances of the current case, the Respondent states that it required a team to provide one-to-one care with a person who had a history of inappropriate sexual behaviour with females and was assessed as being “high risk”. Members of the team would be required to provide the client with a substantial level of personal care and, without the presence of other members of staff, to stay at his home both during the day and overnight.
4.5 Based on its assessment of the risk posed by the client, the particular occupational activities concerned and the context in which they would be carried out, the Respondent submits that it concluded that the appointment of a male support worker to this particular team was a genuine and determining occupational requirement for the post. To expose a female member of its staff to the high risk posed in the provision of such a personal service to this client would, in the Respondent’s view, have been irresponsible. The Respondent states that it had conducted a risk assessment in relation to the client and concluded that he was ”high risk” in relation to females and that this assessment was consistent with previous professional psychological assessments which concluded that the client should not be left alone with females (staff or otherwise).
4.6 The Respondent states that it interviewed a number of male and female candidates for the advertised position(s) including the Complainant. While it is accepted by the Respondent that the selection process was thorough and intensive, comprising a series of “group” and “individual” panel interviews, it contends that all candidates were advised that it was seeking to recruit for at least two roles subject to HSE approval, one of which was gender specific. It emerged, however, that the filling of subsequent vacancies did not materialise at the time as the anticipated additional HSE funding was not forthcoming due to financial cutbacks.
The Law
4.7 The Respondent is relying on Section 25 of the Employment Equality Acts which provides a derogation from the general principle of non-discrimination on grounds of gender, in particular, Section 25(1) in relation to access to employment. The Respondent submits that Section 25 recognises the fact that in certain limited circumstances working arrangements may require an acceptable category of gender discrimination where gender is a bona fide occupational qualification. The Respondent has cited various legal precedents in support of its position and submits that, on the specific facts of this case, it should be permitted to avail of the protections provided by Section 25 of Acts.
4.8 Section 27 of the Employment Equality Acts provides for exceptions to gender discrimination in relation to Gardaí and the Prison Service. It is also submitted that, although considered under a separate legislative provision, similar rationale can be applied in the current case because it was necessary to maintain an all-male care team in respect of this particular client as members of the team would be required to provide a substantial level of personal care and, without the presence of other members of staff, to stay at his home both during the day and overnight.
4.9 It is further submitted that the particular gender requirement that is at issue in this case was strictly confined to the particular post in question and did not apply in relation to the recruitment process generally, or in respect of any other of the Respondent’s clients. The Respondent states that it recognises the Complainant’s right to gender equality but that it had to balance this right with the occupational requirements of the actual vacancy, both in terms of the risks posed to any female employee and in terms of the best interests of the client in question. It is submitted, therefore, that the principle of equal treatment on the specific facts of this case is not capable of being reconciled with the requirements of staff safety and the provision of appropriate care for the particular client.
4.10 In summary, the Respondent submits that a departure from the principles of equal treatment is within the limits of what is appropriate and necessary in order to achieve its aim in the circumstances of the current case. In specifically referring to Section 25, it is submitted that the gender stipulation in relation to “support workers” for the particular client was a legitimate objective and proportionate requirement.
5. Conclusions of Equality Officer
5.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.
Confidentiality
5.2 At paragraph 2.2 I referred to the Respondent’s request that the names of the parties be anonymised in my decision and also to the Complainant’s objection in that regard.
5.3 The Respondent states that its primary concern in requesting anonymity is the protection and wellbeing of the persons who are in its care. While it is a private company, the Respondent states that it provides care and support to people with extremely complex needs and, if the parties were named, then there might be potential for negative impacts on those persons and also on the services it provides.
5.4 The Complainant submits that the Respondent is a private “for profit” company which advertises its services in the public domain and that no person under its care has had their name mentioned before the Tribunal. The Complainant believes that to deny her a right to have the issues in her case published would be a deviation from the ordinary procedures of the Tribunal.
5.5 My investigation of this matter involved hearing very sensitive evidence from the Respondent. However, that is not unusual in cases heard before the Tribunal. Having considered all of the arguments submitted on this issue I have, on balance, acceded to the Respondent’s request for non-identification of the parties. Also, while I have noted the Complainant’s view that the provisions of the Workplace Relations Act 2015 are not relevant to this issue since referral of her complaint predates its enactment, I consider that it is appropriate for me to have regard to the intentions of the Oireachtas in providing for such general anonymity in all future cases of alleged discrimination referred under employment equality legislation. In anonymising the parties I have endeavoured to set out sufficient substantive detail in order to explain the rationale for my decision.
.
Burden of Proof
5.6 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires Complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If they succeed in doing so, then, and only then, is it for the Respondent to prove the contrary.
5.7 In Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) the evidential burden which must be discharged by Complainants before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:
“The claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are
established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”
5.8 In evaluating the evidence, therefore, I must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts. As outlined above, the Labour Court has consistently held 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.
5.9 Evidence provided by the Complainant included hard copies of emails she received from the Respondent, one of which stated “they were looking to recruit a male” and another explained that the Respondent had intended recruiting for two roles, one of which was a gender specific (male) position and the second was subject to HSE approval. I consider that this evidence alone is of “sufficient significance” to establish a prima facie case of discrimination. Accordingly, I deem that it is for the Respondent to rebut this inference.
Alleged Discrimination
5.10 The essential issue for decision by me, therefore, is whether the Respondent discriminated against the Complainant on grounds of her gender in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts. Section 6 defines discrimination as occurring where a person is “treated less favourably than another person ……….on any of the grounds specified ….”, including thegender ground. Section 8(1) provides that in relation to access to employment “an employer shall not discriminate against an employee or prospective employee …” There is no doubt that the Complainant was a prospective employee of the Respondent at the time in question.
5.11 There is considerable consensus between the parties in relation to the facts in this case, with the exception of a small number of issues, one of which is whether or not the Complainant was informed at interview stage that the Respondent was seeking to recruit for two roles (subject to HSE approval), one of which was a gender specific (male) role.
5.12 The Respondent accepts that the initial advertisement for the job(s) did not contain any gender specific element. It contends, however, that all candidates were advised at interview stage that one of the posts was (male) gender specific and, in that regard, it presented evidence from two other female candidates who attended for interview on the day confirming that they were so advised. While I accept the Respondent’s evidence, it does not necessarily follow that the Complainant was informed. For example, the Respondent’s interview team may have overlooked the Complainant when advising other candidates. Alternatively, she may have been informed at some stage but may have missed the point due to the intensity of the selection process and the need to focus on her own performance at interview. Either way, I have no doubt that the fact that the Complainant was not aware that the primary post being competed for was gender specific resulted in increased disappointment and frustration when she was subsequently advised that she was not awarded the post because “they were looking to recruit a male”.
5.13 I consider that the primary issue for consideration in determining whether discrimination has occurred is whether the post in question was genuinely gender specific within the meaning of the legislation and also whether the Respondent’s defence is valid and in accord with the Employment Equality Acts.
5.14 I find the series of events as described by the Respondent to be reasonable, i.e. that it had originally planned to recruit a minimum of two people (ideally three) for posts as “support workers” pending the outcome of deliberations with the HSE, but that the additional posts - which were to be gender neutral - did not materialise at the time. While I find it unusual that the Respondent would have undertaken such a comprehensive competitive process in the mere hope of securing HSE agreement for recruitment at a later date, nonetheless I accept that that is what happened. While the interview process was very onerous for the Complainant, the Respondent would also have expended significant resources and effort into organising and managing the entire process. Therefore, I accept that the Respondent genuinely believed that HSE agreement would be forthcoming and that additional gender neutral posts would have come on stream in due course following the selection process. Otherwise why would the Respondent have gone to the trouble and expense of holding such an in-depth process? Had it been clear from the start that there was only one gender specific (male) position on offer, then the Respondent could have refined the selection process via appropriate non-discriminatory gender specific means.
Nature of the Post
5.15 The Complainant has challenged the Respondent’s view that that the post in question was gender specific as she believes it was essentially a caring role for which she had a wealth of training and experience. She accepts that the individual requiring the care was a man who had a troubled history of convictions for sexual offences involving females and who, at the time, had been resident in a secure nursing home facility. Nonetheless, she is confident that she had the appropriate expertise and skills necessary to fulfil the role.
5.16 The Respondent explained that it initially provided day care services at its care centre to assess the viability of the client who was being released from a secure environment into a supported living community. The Respondent states that during this time the client displayed a lack of social awareness and disinhibition in all matters relating to interactions with females. It conducted a risk assessment in relation to the client and concluded that he was “high risk” in relation to females. The Respondent states that this assessment was consistent with previous professional psychological assessments which had concluded that the client should not be left alone with females (staff or otherwise). A previous psychological assessment was presented in evidence which concluded along similar lines, i.e. that the person should not be left alone with female staff.
5.17 The Respondent also explained that, as the role in question included the need for 24 hour one-to-one contact between client and carer due to the client’s medical condition, this necessitated the carer to sleep over in the client’s accommodation on a regular basis. In light of the foregoing, I accept that the post in question was a male gender specific role. I consider that staff welfare should be a priority for all employers and it would have been grossly negligent to expose any female employee to such a high level of risk as may have arisen in this case. If the employer had done so, in my opinion it would have been leaving itself exposed to significant legal challenge on a number of fronts.
The Relevant Derogation
5.18 As outlined previously, the Respondent is relying primarily on Section 25 of the Employment Equality Acts which provides for a derogation from the general principle of non-discrimination on grounds of gender. Section 25(1) reads as follows -
“25.—(1) A difference of treatment which is based on a characteristic related to the gender ground in respect of access to employment in a particular post shall not constitute discrimination under this Part or Part II where, by reason of the particular occupational activities concerned or of the context in which they are carried out—
a. the characteristic constitutes a genuine and determining occupational requirement for the post, and
b. the objective is legitimate and the requirement proportionate.”
5.19 Section 25 essentially recognises the fact that, in certain limited circumstances, working arrangements may require an acceptable category of gender discrimination where gender is a bona fide occupational qualification. Under Section 25, therefore, it is not unlawful to confine a post to a man or woman where gender is such a bona fide occupational requirement. A similar derogation is provided for in Article 14(2) of the Recast Equal Treatment Directive - Council Directive 2006/54 ([2006] OJ L204/23) - which permits the gender of a worker to be a determining factor as regards access to employment where such a characteristic constitutes a genuine and determining occupational requirement. I consider that, in the particular circumstances of this case, the Respondent is permitted to avail of the protections provided at Section 25 of the Employment Equality Acts. Indeed, it would be difficult to envisage a situation where the application of Section 25 would be more appropriate than in the current case.
5.20 For completeness, I consider that Section 16 of the Acts, which deals with employers’ obligations in certain cases, is also relevant in considering this matter. In particular, Section 16(1)(b) states that –
“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position……if the individual……..is not fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”
5.21 While I am satisfied that the Complainant would generally be fully competent and available to undertake, and fully capable of undertaking, the duties attached to a position of “support worker”, I consider that, in respect of the circumstances of the particular role in question, that the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed were such that it was a genuine gender specific (male) role.
5.22 In summary, I have no doubt that the Complainant suffered a great deal of disappointment and frustration as a result of the manner in which the selection process was managed, particularly in relation to the expectation created and the way in which she was informed of the outcome of the process. However, I do not consider that there was any breach of the Employment Equality Acts. Indeed I understand that other successful female candidates, who had opted to have their names retained “on file” by the Respondent, were subsequently offered appointments in 2013. I have also noted the Respondent’s comments at the hearing that it would have welcomed the opportunity to recruit the Complainant had it been possible to do so at the time and that it would have no difficulty in doing so in the future should the opportunity arise.
6. Decision of Equality Officer
6.1 I have completed my investigation of this complaint and, in accordance with Section 79(6) of the Employment Equality Acts, I hereby make the following decision:
6.2 I find that the Respondent did not discriminate against the Complainant on the grounds of her gender in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts.
___________________
Gary Dixon
Adjudication Officer
7th October, 2015