Complainant

Respondent

Parties

Helen  Collins

Xiu Lan Hotels Limited

Representatives

Charles Daly Charles Daly & Co. Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048081-001

11/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048082-001

11/01/2022

The Complaint Form was received on 11 January 2022 with a complaint of discrimination on the grounds of age.

The Complainant appeared with her representatives at hearing and gave evidence on Oath. A statement of the Complainant’s case was received in the days before the hearing with no documentary evidence.

The Respondent was also represented with the Head of Housekeeping giving evidence on Affirmation, the HR Business Partner giving evidence on Affirmation as well as the HR Director. Replying submissions and documentary evidence was received in reply to the Complainant’s statement.

Both sides availed of the opportunity to present their evidence and cross examine.

It was the Complainant’s evidence that she was called for an interview with Respondent Hotel which she attended on 26 August 2021. Following the interview, she states she was offered the position by the Head of Housekeeping and agreed a start date.

Subsequently, she received a contract of employment. However, she received a telephone call from the HR Director, Mr Charlie Dineen, who advised her that she should not have been offered a permanent contract but instead should have been offered a fixed term contract for a 12-month period. It was her evidence this reversal of the type of contract was due to her age and if after 12months the Respondent felt she was no able for the duties, it could terminate her employment.

It was the Complainant’s evidence that had a fixed term contract being offered day 1 she would not have taken the position as she already held a permanent post.

It was accepted under cross examination that there was no discussion around the type of contract being offered during the interview. It was then put to the Complainant whether it was fair to say that she did not know what type of contract she was being offered at the interview and therefore, did not know what contract was being offer. The Complainant accepted this.

The notes of the interview were put to the Complainant, and she confirmed it stated “casual” work for Fota Lodge with a start date of 6 September 2021.

It was put to her that the conversation with Mr. Dineen did include reference to the normal retirement age of the Respondent and he needed to remove it from the contract of employment as she was over that age. The Complainant responded she was not told what the normal retirement age was. She accepted her date of birth was on her CV and Mr Dineen asked her to confirm her date of birth.

It was the Complainant’s further evidence when asked about subsequent communications that she changed her phone and there was no response from the HR Director.

The Complainant denied speaking with Lorraine O’ Mahony, HR BP on 3 September 2021 or on any other date to discuss her email address or any other matter. The Complainant was unsure if she received the induction email from Ms O’Mahoney. The Complainant accepted she did not attend the induction or manual handling training because she was not taking the job.

The Complainant accepted that she received a text message from Ms. Tatjana Cernavska, Head of Housekeeping on 7 September 2021.

Ms Cernavka, Head of Housekeeping gave evidence first on behalf of the Respondent and outlined the interview she held with the Complainant. She opened her interview notes in evidence. She offered the Complainant the position at the interview. It was her evidence there was no discussion around a contract at the interview but did explain the start and finish time, hours, and days and in particular the seasonal nature of the business. A start date was agreed. On the agreed start date, it was Ms Cernavka’s evidence that the Complainant did not attend for work, so she followed up with a text on 6 September 2021. The Complainant’s reply was the first indication she got that the Complainant was not taking the position.

Ms Cernavka confirmed in cross examination she had not noticed the Complainant’s age. She was focused on her experience which was a positive for Ms Cernavka. She confirmed she did not issue the contract of employment, that was a matter for HR, but did give evidence that everyone got the same contract.

Mr Charlie Dineen, HR Director, gave evidence of his call with the Complainant on 27 August 2021. It was his evidence that Ms O’Mahoney had brought the retirement clause to his attention when preparing the Complainant’s contract of employment. During the call with the Complainant he confirmed that he asked her for her date of birth. She asked him why this was relevant, and it was his evidence he explained to her about the normal retirement age clause in the contract was 66 years and he could remove it from her contract. It was his evidence there was no further discussion around the type of contract, permanent or fixed term.

On 1 September 2021, he received a phone call from the Complainant and admitted he did not know who she was initially. He described the Complainant being annoyed at this. The Complainant was calling about not having received a contract of employment. Mr Dineen stated he confirmed it would be with her in due course and confirmed she was on the list for induction. He subsequently asked Ms O’Mahoney to ensure the Complainant was on the induction list.

Under cross examination, Mr Dineen denied the existence of a fixed term 12 month contract stating the first mention of a fixed term contract was on the morning of the hearing.

Mr Dineen denied receiving a call from the Complainant on 30 August 2021.

Mr Dineen denied taking steps to rectify the Respondent’s position when he was notified of the complaint.

Mr Dineen confirmed the contracts were supplied at the induction session. He also confirmed that it did not make sense to offer her a contract with a retirement clause of 65 years when she was over that age and was the one who applied for the position.

Ms O’Mahoney, HR BP gave evidence of the ongoing procedure in the Respondent Hotel. She gave evidence that fixed term contracts were not the norm in the Hotel and they were only offered in specific circumstances, e.g. maternity leave cover. The standard contract offered to Housekeeping was a casual contract of indefinite duration, the one offered to the Complainant. The contract was opened to the hearing. IT was her evidence that contracts are offered and signed at the induction day. AS the Complainant did not attend the induction day she was not presented with a contract.

Ms O’Mahoney confirmed she did speak with the Complainant on her mobile, as provided on her CV on or around 3 September 2021. Having noticed she had a Hotmail address, it was Ms O’Mahoney’s evidence that their IT had problems with Hotmail addresses and called her to check the email address. During this call the Complainant was informed about the usual terms and conditions of her employment.

There was a bounce back from her email address and Ms O’Mahoney confirmed she never received a response via email from the Complainant nor did she receive a voicemail.

When the Complainant did not attend the induction, the HR BP called her and left a voicemail. This was one of three voicemails she left for the Complainant. None of which were returned.

Under cross examination, Ms O’Mahoney was questioned about the emails, and she confirmed she sent the Covid Compliance training which she believed was sent to her Hotmail address, but the other emails bounced back.

She was questioned on the call of 3 September 2021 with Ms O’Mahoney confirming that the hotel did not offer fixed term contracts. She accepted that she was not aware of any employee that commenced over the retirement age but disagreed that this was an exceptional circumstance as she said people do not tend to apply.

It was Ms O’Mahoney’s evidence that she did not make any assumptions as to why the Complainant did not attend for induction as it is not an unusual occurrence but was surprised as she did not vocalise any issue, particularly around her age, during their call on 3 September 2021.

The Respondent relied on caselaw of Melbury v. Valpeter, EDA/0917, The Southern Health Board, v. Dr. Teresa Mitchell DEE 011, Cork City Council v Kieran McCarthy, Determination No. EDA0821, Margetts v Graham Anthony & Company Limited, EDA038, Brannigan v. The Equality Tribunal and County Louth VEC [2016] IESC 40 to illustrate its submission that the Complainant had no case to answer where the Complainant had not established a prima facia case of discrimination.

Section 6 of the Employment Equality Act defines age discrimination as:

“6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),”

Section 7 of the Act sets out the requirement on the Complainant to provide a comparator who carries out “like work” in order to ground a complaint of discrimination. A comparator must be employed by the same employer but need not be employed at the same time. In some instances, a hypothetical comparator may be relied upon to demonstrate how a person is treated less favourably than the Complainant.

Section 8 (1) widens the scope to include not only employees but perspective employees. Section 8 (5) provides:

“(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of , in this case, age, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell (2001) DEE 011:

“(2) A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the respondent to prove that there was no infringement of the principle of equal treatment. Wallace v. South-eastern Education and Library Board [1980] NI 38; [1980] IRLR 193 followed”

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”

There are a serious conflict of evidence between the parties in this case particularly around the communications.

The first to consider is the Complainant’s claim that she was offered a fixed term rather than a permanent contract of employment after the HR Director spoke to her. There are two key pieces of evidence in answering this question, firstly the Complainant in applying for the position sent in her CV with her date of birth at the top of the page.  Consequently, it was the Complainant herself who notified the Respondent of her age.

Secondly, there was no evidence from the Complainant when or how she was offered a permanent or fixed term contract. The Respondent presented evidence of the 3 parties involved in her recruitment and onboarding all agreeing that the Respondent does not offer fixed term contracts to household staff in Fota Lodges. Furthermore, and of considerably weight is the evidence that the contract of employment, regardless of the type, was never offered to the Complainant as she did not attend the induction day at the Hotel where it is their usual procedure to present the contracts to the new hires. The Complainant did not present any contract or communication around receiving a contract of employment at the hearing.

It is further noted that the Complainant failed to identify a comparator or raise any submission on a hypothetical comparator or the less favourable treatment she is alleged to have suffered in her evidence. This a key requirement of the burden of proof which she has failed to discharge.

There was considerable confusion on the part of the Complainant around what and when phone calls were made and from whom. The Complainant flatly denied ever speaking with Ms O’Mahoney despite Ms O’Mahoney’s detailed evidence that she had a 4–5-minute phone call with her. It is noteworthy that the Complainant gave evidence that she had changed her mobile phone during this time and did not have any of the text message or missed calls or voicemails to support her complaint. I suspect this change in phone has led to further confusion from the Complainant’s perspective between the 26 August 2021 and 7 September 2021.

In conclusion, I prefer the clear evidence presented by the Respondent. Consequently, I find the Complainant, on the balance of probabilities, has failed to establish a prima facie case of discrimination on the grounds of age.

I find the Complainant was not discriminated against on the grounds of age by the Respondent.

Discrimination – Candidate – Interview - Age