SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
MATER MISERICORDIAE HOSPITAL
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MR. OLIVER FALLON
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
Chairman: Ms Owens
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal by the worker against Equality Officer's Recommendation No. EE17/1995.
2. The appeal concerns a claim by Mr. Oliver Fallon that the Hospital discriminated against him on grounds of sex, in terms of Section 2(a) of the Employment Equality Act, 1977, and in contravention of Section 3 of the Act, when it did not interview him for a position as Staff Nurse.
In September, 1993, the Hospital invited applications for the positions of Ward Sister and Staff Nurse in the new Infectious Diseases Unit. Mr. Fallon applied for the post of Staff Nurse but his application was not "short-listed". All the posts were filled, subsequently, by female nurses. Mr. Fallon pursued the matter of his unsuccessful application with the Hospital and, in his opinion, failed to receive a satisfactory response.
Mr. Fallon alleged that he was not selected for interview because he was male and that the fact that no male nurse was called for interview was an indication that the Hospital was prejudiced against male nurses. The Hospital's position was that, of the 46 applications received, 3 were from males, each of whom was not called for interview because he did not satisfy a particular requirement of the Hospital. In the case of Mr. Fallon, the hospital pointed to an unexplained gap of 6 months in his employment history, a gap for which he claims there was a valid reason. He was, in the meantime, placed on a supplementary short-list along with 5 female candidates.
The Hospital stated that a number of applications by females also failed due to unexplained gaps in their employment history. The Hospital added that a letter received, subsequently, from Mr. Fallon contained allegations and statements which were untrue and that, even if it had been decided to offer him an interview, the offer would have been withdrawn, given the contents of that letter.
Mr. Fallon referred the matter to the Labour Court for investigation and recommendation by an Equality Officer, who on the 12th of December, 1995, found that the Hospital did not discriminate against him when they did not call him for interview.
Mr. Fallon appealed the Equality Officer's Recommendation to the Labour Court on the 23rd of January, 1996 on the following grounds:
"(i) The Equality Officer erred in law and in fact in finding that the Mater Misericordiae Hospital did not discriminate against Mr. Fallon contrary to Section 3 of the 1977 Act.
(ii) The Equality Officer erred in law and in fact in finding that an unexplained break in Mr. Fallon's application form excluded him from being called for interview.
(iii) The Equality Officer erred in law and in fact in not awarding an appropriate remedy to Mr. Fallon for the discrimination experienced by him and the consequent distress to him.
(iv) On all grounds submitted during the Equality Officer's investigation and such grounds as may arise during the course of the appeal."
The Court heard the appeal on the 14th of November, 1996. Both parties to the dispute made written submissions to the Court, which were expanded upon orally during the course of the hearing.
The Court has considered the various points of appeal in this case and the submissions made by both parties in support of their positions.
The Court has also examined the Equality Officer's findings and the facts on which she arrived at her recommendation that the Hospital did not discriminate against the appellant in terms of Section 2(a) and in contravention of Section 3 of the Employment Equality Act, 1977.
The Court finds that the Appellant's failure to cite expressly a gap in his employment did affect his application. However, this failure, which the Court accepts was inadvertent, did not totally exclude the Appellant from consideration, as he was one of six candidates (one male, five female) placed on a supplementary short-list.
The Court agrees with the Equality Officer that there was an inference of discrimination against the Applicant when a female who had a similar question against her application was called for interview.
However, taking all the evidence into account and in particular noting that 3 female candidates on the same list as the Appellant were also excluded the Court finds no basis for finding that the Appellant was treated less favourably because of his sex or that the Hospital directly discriminated against him on the basis of his sex.
The Court, accordingly, upholds the Equality Officer's Recommendation and rejects the appeal.
Signed on behalf of the Labour Court
13th of February, 1997______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.