THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC-E2015-106
Geraldine Butler-Duffy
versus
Swairl Ltd (trading as Golden Spiderweb)
File Number: EE/2012/642 Date issued: 19th October 2015
Keywords: Employment Equality Acts, Age, Access to employment, Discriminatory remark
Dispute
1.1 The case concerns a complaint by Ms Geraldine Butler-Duffy that Swairl Ltd (trading as Golden Spiderweb), which is a chain of ladies fashion boutiques, 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 Acts 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 Acts, 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 as required by Section 79(1) of the Acts, and pursuant to the continuation of my functions set out in Section 83 of the Workplace Relations Act 2015, as amended by Section 22 of the National Minimum Wage (Low Pay Commission) Act 2015. Submissions were received from both parties and a hearing was held on 23rd September 2014.
Summary of the complainant’s case
2.1 The complainant applied for the position of full-time Sales Assistant with the respondent for their store in Galway Shopping Centre. She has extensive retail experience. She applied by email and had a telephone interview with Mr R (junior). She submits that he seemed pleased with her level of experience (26 years in the retail sector) and asked Ms Butler-Duffy to attend a second interview with his mother Mrs R (who had responsibility for staffing the shops) on 11th October 2012.
2.2 Ms Butler Duffy met with Mrs R who told her that the manager of that shop was very ill. The complainant submits that Mrs R went on to say that was very strict about shop cleanliness. Then, Ms Butler-Duffy submits, Mrs R asked ‘Are you able for the job?’ The complainant maintains that this question alludes to her age. Ms Butler Duffy is in her 50s and is fit and healthy. She submits that this question would not be asked of a younger person. According to Ms Butler-Duffy, Ms R went on to say that she had employed others who said they were able for the job but they were not and that she had to go through the recruitment process again. The complainant submits that Mrs R told her that she would think about whether Ms Butler-Duffy was suitable or not and let her know the following day.
2.3 Ms Butler-Duffy submits that she did not hear from the respondent the following day or at all until she submitted her complaint to the Tribunal. Her request under the Data Protection Acts for the interview notes was also ignored. She submits the whole experience dented her confidence.
Summary of the respondent’s case
3.1 The respondent did not attend the hearing and gave no reason as to why it did not attend. However, Swairl Ltd did provide a written submission.
3.2 In the submission the respondent stated that they interviewed 26 people for the position. They submit that they told all interviewees that if they did not get back to them within 24 hours they were unsuccessful. They submit that they receive no complaints from the other applicants.
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 within the meaning of Section 8 (5) of the Acts. 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 The respondent did not assist its case by failing to attend the hearing. Notification of same was sent by registered post on 14th July 2014. It was signed for on behalf of the respondent on 15th July 2014. Even in their written submission they did not deny that Mrs R asked whether the complainant was able for the job. I accept the complainant’s contention that it could be perceived as a discriminatory remark on the grounds of age. In the absence of the respondent offering context to why the question was asked (by giving direct evidence at the hearing), I find that the complainant has established a prima facie case of discrimination in relation to access to employment. Swairl Ltd has not rebutted it in their written submission as well as their failure to attend the hearing.
4.4 In considering the redress, I must be cognisant that the maximum that I may award for a complaint regarding access to employment is €13,000 – see Section 84 (4)(b) of the Acts. I do not find this discriminatory remark on the grave end of the spectrum of breaches under the Acts.
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 established facts from which it may be presumed that she was discriminated on the grounds of age regarding access to employment.
5.2 In accordance with Section 82 of the Act, I order the respondent:
(a) pay the complainant €1,000 (one thousand) in compensation for a breach of the Employment Equality Acts. The award is redress for the infringement of Ms Butler-Duffy’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
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Orlaith Mannion
Adjudication Officer/Equality Officer