DEC-E2017-041

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-041

PARTIES

An Individual

AND

A Hotel

(Represented by DAS)

File reference: et-149999-es-14

Date of issue: 7th June 2017

1. DISPUTE

1.1 This dispute concerns a claim by an individual that he was discriminated against by a hotel, to whom he was applying for employment, on the grounds of age and gender.

1.2 The claimant referred his claim to the Director of the Equality Tribunal on 29 October 2014. This claim was delegated to me, Ray Flaherty, an Adjudication Officer/Equality Officer, for investigation, hearing and decision. Submissions were received from both sides and, as part of my investigation, I conducted to a hearing on 18 January 2017.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2. CLAIMANTS' SUBMISSION

2.1 On 20 August 2014 the Complainant applied for a job as a receptionist at the Respondent's hotel. Following a series of email communications between the parties, the Complainant was invited, by the Respondent's General Manager, to attend for interview on Tuesday, 26 August 2014. The interview was timed for 11:00 am.

2.2 The Complainant arrived at the hotel at 10:30 am and, at 10:45 am, announced his presence to the receptionist on duty. Having advised the General Manager of his presence, the receptionist requested the Complainant to take a seat in the hotel lobby. After waiting for approximately 30/40 minutes, the Complainant went back to check with the receptionist, who informed him that she would once again contact the General Manager.

2.3 The Complainant submits that a young woman arrived at 11:40 am and, having sat in the lobby for approximately ten minutes, was greeted by a person, whom Complainant believed to be the Respondent's General Manager, and was taken in for interview. The Complainant submits that the young lady appeared again after approximately fifteen minutes with the General Manager and left the premises. The Complainant submits that, at no time during these interactions, did he receive an acknowledgement of his presence from the General Manager.

2.4 The Complainant submits that he then went back to the receptionist and enquired what was happening in relation to his interview. The receptionist apologised for the delay and made a further call to the General Manager in relation to the situation.

2.5 The Complainant submits that, after one hour and twenty minutes had elapsed, he asked the receptionist about the interview. The Complainant submits that the receptionist offered to call the General Manager for the third time. The Complainant submits that at this point he told the receptionist that he was leaving in disgust, that he would be sending an email of complaint to the hotel and would be taking the matter further.

2.6 The Complainant submits that, later that evening, he sent an email to the Respondent's General Manager in relation to the situation but he received no reply.

2.7 The Complainant submits that his experience in the hotel on the day in question was a blatant form of discrimination on a number of levels. He submits that the Respondent's General Manager was rude to him. He contrasted his experience on the day with that of the young lady, who arrived after him, and whose interview was conducted without any undue delay.

2.8 The Complainant submits that his treatment by the Respondent, and in particular its General Manager, amounted to discrimination on the grounds of gender and age.

3.RESPONDENT'S SUBMISSION

3.1 In response to the claims made by the Complainant, the Respondent raised a number of preliminary issues in relation to jurisdiction and time limits.

3.2 Without prejudice to the responses in relation to the substantive element of the complaint, the Respondent submits that the issues of alleged discrimination, which are all denied, are not matters which fall within the Equal Status Act for determination. It is further submitted that the acts of alleged discrimination, again which are denied, fall within the Employment Equality Acts determination.

3.3 Similarly, without prejudice to the responses in relation to the substantive element of the complaint, the Respondent submits that the issues of alleged discrimination, which are denied, took place in August 2014. The Respondent submits that as the Complainant had initiated his claim under the wrong act, he is now statute barred from initiating any claim alleging discrimination against the Respondent under any other act. Consequently, the Respondent submits that the claim is out of time.

3.4 With regard to the substantive allegations of discrimination, the Respondent strongly denies that they acted in a discriminatory fashion in relation to the Complainant's application for the position of receptionist.

3.5 The Respondent submits that while the Complainant's application form identified his gender, it only allowed for an approximation of his age. The Respondent further submits that the invitation to the complainant to attend for interview clearly indicates that there was no intention to discriminate against him. The Respondent submitted that had they wanted to discriminate against the Complainant on either age or gender grounds, it could have done so at the short listing stage in the process.

3.6 In conclusion, the Respondent submits that, on the basis of the facts, the Complainant has failed to establish a prima facie a case of discrimination. Consequently, the Respondent submits that the onus of proof has not moved to them.

FINDINGS & CONCLUSIONS:

(A) Preliminary Issues:

4.1 The first preliminary issue for consideration is that of whether or not I have jurisdiction to hear the Complainant's claim. The Respondent submits that the Complainant has lodged his complaint under the Equal Status Act. The Respondent further submits that, as the Complainant was not obtaining a service of any kind nor was he being supplied with any goods, the Equal Status Act has no application here and, as a consequence, an Adjudication Officer has no jurisdiction to hear the complaint.

4.2 Having carefully considered the evidence adduced and the representations made, I am satisfied that the Complainant's complaint clearly falls under the Employment Equality Acts. At the time the Complainant submitted his complaint to the Equality Tribunal separate claim forms were in use for Equal Status and Employment Equality claims. However, it should be noted that the forms used for these claims are not statutory forms.

4.3 A review of the correspondence on file in relation to this case suggests that the Complainant considered the alleged discrimination to have been employment related. In his email to the Respondent, on the date of the alleged incident, the Complainant stated that he considered his treatment to be "both age and gender discrimination under the Employment Equality Act of 1999 to 2011."

4.4 The correspondence file also contains evidence of a response from the Equality Tribunal to the Complainant following a telephone enquiry on 19 September 2014. The subject matter of this email response is clearly "The Employment Equality Acts". In addition, this correspondent supplied the Complainant with "information which may assist you in lodging a complaint the Equality Tribunal under the Employment Equality Acts."

4.5 Based on the above evidence, it is clear that the Complainant considered, from the outset, that his treatment by the Respondent, in relation to his application for the vacant position, represented discrimination under the Employment Equality Acts. Notwithstanding the fact that he may also have considered his treatment to violate the Equal Status Acts, I am of the view that, in the circumstances which prevailed, it would be unreasonable to penalise the Complainant for submitting his complaint on the incorrect form.

Consequently, I am satisfied that I have jurisdiction to hear the complaint before me and to issue a decision in that regard.

4.6 In the context of the conclusions set out under the previous point, I find that the second preliminary issue raised, that of time limits, no longer applies.

(B) Substantative Complaint:

Burden of Proof:

4.7 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings of 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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

The Labour Court elaborated on the interpretation of Section 85(A) in Melbury v Valpeters (EDA/0917) where it is stated that the section: “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.”

4.8 Having carefully considered all the evidence presented by the Complainant in his submission and in the oral evidence provided at the hearing, I am not satisfied that the Complainant has satisfied the requirements placed on him by Section 85 of the Acts to demonstrate a prima facie case of discrimination.

4.9 This finding is based on a number of factors. Firstly, I consider it as very significant that the Complainant was invited to interview by the Respondent. Had there been any intention by the Respondent to screen potential candidates on the basis of either gender or age, then it would have been highly unlikely that the Complainant would have been called for interview in the first place.

4.10 Secondly, while I do accept that the length of time the Complainant was required to wait in the hotel lobby on the morning in question was somewhat unreasonable and could have given rise to certain feelings of frustration and dissatisfaction for any interviewee, I note that it was the Complainant who terminated matters on the day by leaving the hotel before the receptionist had a final opportunity to advise the General Manager of the situation. I also note that, prior to leaving, the Complainant indicated to the receptionist that he intended to take the matter further.

Consequently, I am of the view that, notwithstanding the length of time he was required to wait, the Complainant, by his own actions in leaving the hotel, significantly contributed to the fact that he did not obtain an interview on the day.

4.11 Thirdly, I note that, by way of a letter dated 7 October 2014, the Respondent's General Manager wrote to the Complainant personally apologising for his experience on the day of the interviews and the fact that he did not get to be interviewed.

It is clear from this correspondence that failure to call the Complainant for interview on the morning in question was unintentional on the part of the Respondent's General Manger and could not, therefore, be construed as an attempt to discriminate.

4.12 Finally, I note, from the evidence presented on behalf of the Respondent at the Hearing, that the current and ongoing gender and age profile for the receptionist grade in the hotel does not suggest that the Respondent engages in discriminatory behaviour in this regard.

5. DECISION

I have investigated the above complaint and make the following decision in accordance with Section 79 of the Employment Equality Acts and Section 41 (5) (a) (iii) of the Workplace Relations Act 2015.

I find that the Complainant failed to establish a prima facie case of discrimination on the grounds of either gender or age in relation to his application for a position of receptionist with the Respondent.

Consequently, the Complainant's complaint in this regard is not upheld.

____________________

Ray Flaherty

Adjudication Officer/Equality Officer

7th June 2017