Moriarty (Represented by Thomas A Walsh & Co, Solicitors) AND Dúchas - The Heritage Service
1.1 This dispute concerns a claim by Ms Michelle Moriarty that she was discriminated against by Dúchas - The Heritage Service on the grounds of marital status and age contrary to the provisions of the Employment Equality Act, 1998 when an unadvertised position of seasonal guide in Kilkenny Castle was offered to a less experienced person who was single and younger than the complainant. The complainant also asserted that she had been victimised by the respondent.
1.2 SIPTU, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 25 January 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 12 February 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The complainant later engaged legal representation from Thomas A Walsh & Co, Solicitors. Submissions were sought from both parties and a joint hearing was held on 8 November 2002. Subsequent correspondence with the parties concluded on 5 February 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started work as a seasonal guide in Kilkenny Castle in May 1999. Her contract was due to expire at the end of September but she and Ms A - also in her first season - were offered an extension to 10 October. The complainant and Ms A started a second season in March 2000. During the interim, Ms B and Ms C, both in their second seasons in the Castle, had been offered long term temporary contracts.
2.2 In July 2000 an internal advertisement appeared offering a permanent position at the Castle, with eligibility restricted to persons who had worked at least two seasons. The complainant said she did not apply as she felt Ms B by virtue of her seniority as a seasonal guide had qualified for the permanent position. Five people applied for the permanent position, and the complainant said that the successful candidates were all single and younger than she was. She pointed out that the advertisement did not state that more than one position would be filled, but said that two candidates were offered permanent positions, one was placed on a panel and one was given a seasonal contract.
2.3 The complainant hoped that she would be given an extended contract for that year, as had happened previously with Ms B and Ms C. Her contract was due to conclude on 29 October, and four days beforehand she was offered an extension to the end of November.
The complainant said she was devastated by how short the offered extension was. Her husband had started a new business and she felt that finishing work in early December might make it difficult to get work for Christmas. She declined the contract extension.
2.4 On 28 October, the day before the complainant was due to finish work, she discovered that Ms D, a guide in her first season who had worked for one or two weekends in October, had been asked to fill in the diary with the dates she would be available until the end of December. This guide was also single and younger than the complainant. The complainant was unable to understand why she had not been offered this potential extra work.
2.5 She pointed out that Ms A, who started work at the same time as the complainant, was contacted in January 2001 and offered a permanent contract. The complainant said that Ms A had not completed her seasonal contract at the end of 2000, having obtained another job. In answer to a Parliamentary Question (PQ), also in January 2001, the complainant learned that the staffing of the Castle was five permanent and one seasonal guide. This seasonal guide was Ms D, and the complainant said the position had never been advertised. As the longest serving seasonal guide, she should have been offered this extended contract. Another younger single woman was employed as a seasonal guide in the Castle in April 2001, having applied two months after the official closing date for applications.
2.6 The complainant pointed out that she herself was never contacted by the respondent to fill any sort of position: short-term, temporary or permanent. The only differences she could identify between herself and the others who were offered either permanent positions or long-term temporary contracts was that she was older and also married.
2.7 The complainant based her allegation of victimisation on an incident that had occurred during the 2000 season. She had discovered an anomaly in the rostering arrangements and realised that certain members of staff were due arrears of pay as they were actually working longer hours than contracted. The matter was brought to the attention of the respondent's head office, and the complainant suggested that she was being penalised for
embarrassing her supervisor.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent said that the complainant chose not to apply for the permanent positions advertised in July 2000. There were five applicants, who were aged between 21 and 36. Marital status was not requested or declared on the applications. Following interview, two applicants were offered permanent positions, one was placed on a panel and two were deemed unsuitable.
3.2 By letters dated 24 October and 15 November 2000, the complainant notified the respondent's management division, Education and Visitor Service (E&VS) that she felt she had been discriminated against on the grounds of her "status as a married woman". An officer from E&VS spoke to the complainant by telephone and replied in writing on 7 December, in effect pointing out that the complainant had not applied for the permanent position and therefore could not have been considered. The complainant was invited to supply any relevant details which would substantiate her claim of discrimination. This invitation was not taken up and the respondent was notified by the Equality Tribunal on 12 February 2001 that a claim of discrimination on the grounds of age and marital status had been referred.
3.3 The respondent agreed that the advertisement for the Kilkenny Castle positions did not specify the number of vacancies, nor did it mention that a panel would be established. The respondent said the reason for this was because it was difficult to gauge from week to week the number of vacancies which may arise at any of its 130 work locations, and in its staff of over 2,000 people. The logistics of running recruitment and promotion competitions were described as forbidding, and the respondent said that reserve panels are always established where management felt they may be required. Panels were not established where there were insufficient suitable candidates, nor where there was little likelihood they would be required.
3.4 The respondent pointed out that the complainant had a longer contract in her second season than in her first, even without the declined extension, and it said no greater expectations were given. The complainant rejected the extension, as was her right, and left the respondent's employment on completion of her contract. The respondent said that it could only conclude that she was not interested in further work that season. A need for casual staffing arose subsequently, and Ms D was asked to indicate the days she would be available, as she had already applied in writing for consideration for such work. The respondent said this may not have arisen if the complainant had accepted the extension, and in any case Ms D worked just five days from November 2000 to the end of February 2001.
3.5 Regarding the offer of a permanent position to Ms A, the respondent said that she had been a successful candidate in the July 2000 competition, and had been placed on a panel for permanent posts. The panel was still in effect when such a post became vacant in January 2001 and Ms A was naturally offered the position. The fact that she had not completed her seasonal contract during the previous year was immaterial.
3.6 The respondent agreed that a late applicant was employed in a seasonal position in the Castle in April 2001. The vacancy had come about because of the Foot and Mouth crisis, which had meant a delay in taking on seasonal staff already interviewed and placed on a panel. As a result, many panel members had taken up alternative employment and no one was available to work in April. On that basis, the respondent considered late applications and it pointed out that by that time the complainant was not in its employment and had not applied for a position for the 2001 season.
3.7 The respondent denied that the complainant had been victimised because she had raised the issue of the roster anomaly in 2000. The complainant was correct in the issue she raised, the matter had been processed by the union and the arrears of pay were refunded to the affected staff. The respondent said that the complainant was held in high regard, and would have been offered extra work except that it was clear she did not want it. The respondent said it could only conclude that the complainant may have regretted her failure to apply for the permanent positions in 2000 after witnessing other guides receiving subsequent offers of employment. The respondent said that this may be a cause of grievance on her part, but that it could not constitute discrimination on the grounds of age or marital status.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the grounds of marital status and age contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include marital status and age. Section 8 provides that
(1)In relation to-
(a) access to employment...
(b) conditions of employment...
(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
4.3 The complainant also claimed she was victimised by the respondent. Section 74 of the 1998 Act provides
(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith --
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
The complainant of discrimination
4.4 The traditional approach taken to complaints of discrimination on the original ground of sex in the case law of the European Court of Justice, and sex and marital status in the caselaw of the Labour Court and Equality Officers, has been that once a complainant establishes a prima facie case of discrimination, the onus then moves to the respondent to rebut the presumption of discrimination. This common law approach has become the statutory requirement in complaints of gender discrimination in employment following the ransposition of Council Directive 97/80/EC into Irish law on 18 July 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001). The Regulations provide that
[w]here in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.
4.5 The Employment Equality Act, 1998 introduced seven new grounds of discrimination, not drawn directly from European Union Directives or European Court of Justice case law. The Council Directive and the Regulations mentioned above are not directly applicable to grounds other than gender, but this approach appears to me to be fully consistent with the development of discrimination case law. It was the approach of the Labour Court in the case Revenue Commissioners and O'Mahony & others (EDA033) on the age ground, and I intend to apply it in this claim.
4.6 The first requirement, therefore, is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him or her. In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) (AEE/99/8), the Labour Court said "...this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging this evidential burden. If she does, the respondent must prove she was not discriminated against on grounds of her gender. If she does not, her case cannot succeed."
4.7 In her initial referral, the complainant asserted that the last occurrence of the allegedly discriminatory act was October 2000. During the course of the investigation however she also cited as evidence of discriminatory treatment the fact that Ms A was offered a permanent position in January 2001, that she had discovered that Ms D was employed as a seasonal guide in January 2001, and the employment of a seasonal guide in April 2001, two months after the closing date for applications. As the complainant wrote to the respondent in the first instance alleging discrimination on 24 October, it would appear that the October 2000 date was the starting point of her belief that discrimination had occurred. However, the respondent was on notice of the other issues, and provided its responses to them, so I will consider each of the incidents.
4.8 The incident that had taken place on 24 October was the offer to the complainant of an extension of her contract to end-November. In her submission, she described her reaction to this offer as "To say I was devastated was an understatement - my whole world crashed". It is clear that the complainant had expected or hoped for a much longer contract. In the previous year, Ms B - in her second season - had been offered a one year contract to fill a career break vacancy. Ms C had concluded her first season at the end of October 1999, but was asked to work from January 2000 to fill Ms B's position. The complainant and Ms A were now the most senior seasonal guides and naturally expected that they would be offered such opportunities as they arose.
4.9 The respondent pointed out that the complainant had been given a contract from 1 March to 29 October 2000, some three and a half months longer than her 1999 contract. It said that no other expectation was given. The contract extension offered to the complainant was the best estimate of staffing requirements that could be made at the time, taking into account financial considerations and known factors such as holidays.
4.10 For the complainant to establish a prima facie case of discrimination in relation to the contract extension, it would be necessary for her to show that opportunites such as in 1999 arose for a longer contract extension and that she had not been given the opportuinity that other younger single guides had been. There is no evidence available of such opportunities. No staff member went on career break, and so there was at the time of the extension offer no long-term vacancy as had arisen in 1999. In the circumstances, I am satisfied that the complainant has failed to establish a prima facie case of discrimination.
The offer of a permanent position to Ms A 4.11 Ms A had been a candidate for the July 2000 competition, and was placed on a panel following a successful interview. The offer of a position in January 2001 came about because a permanent vacancy arose. It is clear that the complainant could not have been offered this position, as she was not on the panel, having chosen not to apply for the competition. I cannot find that the offer of this position to Ms A constituted prima facie evidence of discrimination against the complainant.
Ms D's employment as a seasonal guide
4.12 At the point where Ms D was asked to fill in the diary with the dates she would be available, the complainant had already refused the contract extension. What she had been offered was one month's full-time employment, whereas Ms D was being offered the prospect of casual work during the period November to December. She was subsequently offered casual work during January to February 2001. In the event, she worked just five days during the period November 2000 to February 2001. I consider it is reasonable for an employer to assume that a person who has refused full-time employment for a guaranteed period would not be interested in the sort of casual work that was envisaged for Ms D. I am satisfied that the offer of such work to Ms D did not constitute prima facie evidence of discrimination against the complainant.
The late employment of a seasonal guide in April 2001
4.13 The seasonal guide was a late applicant for the position, which the respondent explained arose because of the Foot and Mouth crisis. It must be a matter for an employer to determine its staffing needs at any particular time, and to decide when it has an immediate vacancy which must be filled at short notice. The complainant had not applied for employment for the 2001 season. She could not therefore be offered the position, and I cannot find that the late employment of the seasonal guide constituted prima facie evidence of discrimination against her.
The claim of victimisation
4.14 Although the respondent denied this, the complainant asserted that she was victimised because she must have embarrassed her supervisor who was responsible for the management of the disputed roster. The dictionary definition of victimise is "to punish or discriminate against selectively or unfairly" (Collins English Dictionary). However, it will be seen from 4.3 above, the definition of victimisation in the 1998 Act is quite different and very specific. It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of.
4.15 In this claim, no such connection can be demonstrated. I am satisfied that there is no evidence that the complainant was mistreated because she raised the roster issue, but even if there was such evidence, the matter could not constitute victimisation as envisaged by the Act. I must therefore find that the complainant was not victimised by the respondent.
5.1 Based on the foregoing, I find that Dúchas - The Heritage Service did not discriminate against Ms Moriarty on the grounds of marital status and age, contrary to the provisions of the Employment Equality Act, 1998, when the position of seasonal guide in Kilkenny Castle was given to a less experienced person who was single and younger than the complainant. I also find that the complainant was not victimised by the respondent contrary to the provisions of the Act.
20 March 2003