SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MANDATE)
Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Decision Dec-E2002-013.
2. This is an appeal by the employer against Equality Officer Decision DEC-E2002-013 in which the Equality Officer found that the company had discriminated against Ms. Freeman on the basis of her marital status, family status and age, within the meaning of section 6 (2) of The Employment Equality Act, 1998 and in contravention of sections 6(1) and 8 (1) of that Act, in the manner in which it conducted the selection process for the position of Head Cashier at its Sundrive Road Branch, following an internal competition in February 2000.
The company appealed the decision stating that the Equality Officer’s had erred in law and in fact when concluding that the company was in breach of the Act on the grounds of marital status, family status and age. The company also appealed the level of compensation awarded on the ground that it was excessive. The company holds that the Decision of the Equality Officer to give preferential treatment to the claimant in future competitions for the position of Head Cashier could lead to allegations of discrimination by others.
The Equality Officer in DEC-E2002-013 found against the company and recommended that the complainant be compensated by the payment of €20,000 for the distress suffered by her as a result of discriminatory treatment by the respondent in the course of the selection process to the position of Head Cashier in February 2000.
The complainant was 31 years of age, married with one child at the time of the alleged act of discrimination. The successful candidate was 28 years of age, single with no children. She had been employed with the company for 16 years, 13 of which were spent working in the cash office of the Sundrive Road branch. For a short time she worked on the shop floor, however, since July 1999 she resumed her role as number two cashier in the cash office.
She works 34.5 hours per week which is less than the normal working hours.
On 7th February 2000 it became known that the position as Head Cashier would become vacant. Two people applied for the position. The complainant applied on 8th February 2000, the successful candidate applied on 11th February.
Interviews were conducted by the store manager and the company’s principal recruitment officer on 17th February 2000. Following the interviews, the store manager contacted the company’s Chief Cashier, who had worked with both candidates for her opinion on the most suitable candidate for the position. The company stated that the Chief Cashier gave her opinion on the most appropriate candidate for the position, i.e. the candidate who was eventually successful.
On 19th February the store manager informed the complainant that her application was not successful and that the position was offered to the other candidate. The store manager enquired whether she would be interested in another position in either the Sundrive Road branch or elsewhere in the company. She declined.
On 29th February and 9th March 2000, meetings were held between the Complainant and management to discuss the complainant’s dissatisfaction with the selection process. At these meetings the Complainant stated that the complainant possessed equal attributes to the successful candidate and maintained that therefore it was up to the company to demonstrate why the successful candidate was chosen.
These meetings did not resolve the matter to the complainant’s satisfaction. The Complainant lodged a complaint under the Employment Equality Act, 1998 on 22nd March 2000.
The Complainant’s argument:
When the complainant first inquired about the job from the store manager, his response was "what job is that" and when she told him she was referring to the Head Cashier job he alleged that he asked her "would you be disappointed if you did not get the job ". The complainant considered these comments as negative comments.
There was no job advertisement and this is at variance with the company’s equal opportunities policy.
The complainant was not invited to visit the Bray store to view a new system appropriate to the cash office which was about to be introduced in the Sundrive Road branch. The successful candidate was invited to attend on the morning of the interview.
The complainant possessed equal attributes to the successful candidate based on the criteria for the job and was at least equally as capable as the successful candidate. Therefore, the Complainant contended that the onus rested with the company to demonstrate how the experience and qualification of the successful candidate were considered superior to those of the complainant.
The reluctance of the company to provide a job advertisement, job description, interview assessment sheets/notes when requested by the Complainant provides reasonable grounds to claim that the complainant had been subjected to an act of direct discrimination or and at the very least, indirect discrimination.
When taken in totality the facts prove that the company never intended to offer the complainant a fair and equal opportunity to the position on offer.
The failure of the company to advertise the post indicated an intention to promote a particular candidate. In doing so the company directly discriminated against the complainant principally because of her age, marital status and family status and because she worked part-time as she was treated less favourably than the successful candidate. She was indirectly discriminated against as she worked part time due to her family status.
Management did not agree on a list of desired competencies prior to the interview and accordingly, did not apply an objective evaluation.
The manner and extent to which the Chief Cashier was involved in the selection process was inappropriate. The Complainant concurs with the Equality Officer who stated that it would have been better to have the Chief Cashier sit in on the interview board or her opinions sought in writing prior to the interviews in order to avoid subjectivity and bias.
As the complainant was of the opinion that the outcome of the interview was a foregone conclusion she showed a lack of enthusiasm for the job during the interview. This placed the successful candidate in a dvantageous position over the claimant in that she had not been subjected to the same negative pre interview treatment, thus establishing a case for direct discrimination.
The Complainant has adequately established indisputable facts on which to base the assertion that a prima facie case of discrimination exists and thus shifts the burden of proof to the employer.
The Employer’s arguments:
The company is satisfied that all proper procedures were carefully applied by the interview board.
Both applicants were interviewed on the same day by the same interviewers, both lasted for approximately 20 minutes. Each candidate was asked the same questions. Candidates were scored across a matrix of competencies by each of the two interviewers. The successful candidate scored 101 marks in total while the unsuccessful candidate scored 88 marks in total. The interviewers concluded that whilst both applicants were capable of doing the job they believed that Ms. G was the better candidate.
In line with previous competitions for Head Cashier positions in other stores in the company, the interviewers sought the opinion of the Chief Cashier. In other competitions for this job, married females with children had been appointed and the Chief Cashier would have been consulted in relation to these appointments. In any event to have her opinion prior to interview would have influenced the interview board in favour of a particular candidate. The Equality Officer does not explain how not having the Chief Cashier on the interview panel discriminates on any of the three alleged grounds.
The successful candidate had over six months experience, working in an acting capacity as Head Cashier before a permanent vacancy arose and during this time the complainant was reporting to her.
The Equality Officer confused fairness and discrimination and as a result has erred in the conclusion reached. He deals with the three grounds of discrimination as one issue and does not identify specifically how the claimant was directly discriminated on each of the grounds.
The job was advertised and in any event the complainant knew about the job. The Complainant’s assertion that other people complained about the lack of an advertisement came from people of a different marital status, family status and age to the complainant. Therefore, the Equality Officer was incorrect to conclude that the lack of an advertisement constituted discrimination.
The company followed the same procedure in selecting those to attend the Bray store for an inspection of the new equipment.
It is an accepted fact that the complainant assured the interview board that there would be no difficulty in working full time hours as required by the applied for position.
While the Equality Officer found that a comment by the store manager to the complainant prior to the interview was ill-advised and indiscreet given the central role he was to play in the recruitment process, there were no discriminatory statements made.
The Equality Officer found no evidence to support an allegation of discrimination on the grounds alleged, no discriminatory questions were asked at interview and no discrimination occurred in the appointment made.
The Equality Officer concluded that the manner of inclusion of the Chief Cashier in the selection process was open to the application of subjectivity and bias, and that the comments of the store manager were ill-advised and indiscreet. He held that the exclusion of the complainant from the visit to the Bray office resulted in her being treated less favourably than the successful candidate. On this basis the Equality Officer was satisfied that the complainant had established facts from which it may be presumed that she suffered less favourable treatment than the successful candidate. When combined with the fact that the complainant is married with a child, whereas the successful candidate was single with no children and the complainant was older than the successful candidate, the Equality Officer was satisfied that a prima facie case of discrimination on grounds of marital status, family status and age had been established and that the burden of proof was shifted to the employer. The Court cannot concur with the Equality Officer’s conclusion in this regard.
The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination. The difference in age of three years, the complainant being 31 years old and the successful candidate being 28 years old, is not in the Court’s view significant enough to establish a presumption of discrimination, in the absence of any other facts. While the application form for the position required the candidates age, which of itself is prohibited by the Employment Equality Act, 1998, no facts were presented by the complainant to substantiate the allegation that the company had treated her less favourably due to her age.
The complainant was married, the successful candidate was single, (she was living with a partner). It is an undisputed fact that no reference to marital status was made at any stage during the selection process. The Court is satisfied that no evidence was presented to substantiate the allegation that the company had treated the complainant less favourably due to her marital status. Evidence was given by the company that the holders of this position in the past were of a married status.
The complainant had one child, while the successful candidate had no children. The Court is satisfied that no evidence was presented to substantiate the allegation that the company had treated the complainant less favourably due to her family status. Evidence was given by the company that the holders of this position in the past were also parents.
Due to her family responsibilities, the complainant was facilitated with reduced hours by the company. The requirements of the position as Head Cashier were for full time hours. This did not present a difficulty for the complainant and at no stage of this appeal was this raised as an issue, nor was it raised at the hearing of the Equality Officer.
Before the onus of proof shifts to the employer it is for the complainant to adduce facts, which on the balance of probabilities, indicate that a prima facie case of discrimination has occurred.
The Court is not satisfied that the complainant has established any evidence to show she was discriminated against.
- The Court is not satisfied that the complainant has demonstrated that the reason she was unsuccessful in being appointed to the position as Head Cashier was as a result of her marital status, her family status or her age.
Based on this lack of evidence, the Court is satisfied that there is no case of discrimination within the meaning of section 6 (2) of The Employment Equality Act, 1998 and in contravention of sections 6(1) and 8 (1) of that Act, in the manner in which the company conducted the selection process for the position of Head Cashier at its Sundrive Road Branch.
Accordingly, the Court allows the employer’s appeal and overturns the Equality Officer’s decision.
Signed on behalf of the Labour Court
14th November, 2002______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.