Hayes AND Department of Environment, Heritage and Local Government, Kilkenny
1.1 This dispute concerns a claim by Ms Christina Hayes that she was discriminated against by the Department of the Environment, Heritage and Local Government on the ground of gender contrary to the provisions of the Employment Equality Act, 1998 when she was not interviewed for the position of Park Constable at Kilkenny Castle.
1.2 The complainant referred a claim to the Director of Equality Investigations on 4 October 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 21 November 2002 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 original referral named Dúchas-the Heritage Service as the respondent, but the respondent's representative agreed that the Department should be the respondent following the dissolution of Dúchas in 2002. The complainant had also claimed discrimination on the family status ground, but this claim was withdrawn at the hearing. Submissions were sought from both parties and a joint hearing was held on 17 October 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant lived in Kilkenny, and frequently visited the Castle Park with her children. In conversation with one of the Park Constables, she expressed an interest in being employed and was advised to write to Dúchas to enquire. She received a letter dated 18 April 2002 from the Industrial Personnel section which enclosed an application form. The complainant completed this, indicating an interest in a position as Park Constable, and forwarded it to Dúchas.
2.2 In another conversation with a Park Constable, in early July 2002, the complainant discovered that interviews had been held for the position. She wrote to Dúchas to find out why she had been omitted from the interview process. By letter dated 18 July from the Industrial Personnel section, she was informed that her name had been inadvertently overlooked when a search of the database was carried out to discover applicants for the vacancy. The respondent apologised for the oversight, but said it was unable to take any further action at that point as the post had been filled.
2.3 The complainant pointed out that seven people had been interviewed, all of whom were men. She said that as the post was permanent and pensionable, the fact that it was not advertised was discriminatory against all people seeking employment. She also disputed that the post had been already filled at the time she received the letter from the respondent, as she was told by a Park Constable that it was vacant until the end of July.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent said that it was not obliged to fill vacancies by advertisement but was obliged to fill them by competition. The Industrial Personnel section maintained a database of applicants who are contacted when vacancies arise. In the case of the vacancy for Park Constable, a search of the database revealed only male candidates. The respondent pointed out however that the relevant vacancy was created by the retirement of a female Park Constable.
3.2 At the time of the incident complained of, the complainant's details had been entered on the database, but she was listed inadvertently as being interested in the position of GO/ Constable (with a space incorrectly entered before Constable). The database was searched to find applicants for the position of GO/Constable, and the complainant's details were not found on the search. The respondent suggested that the details had been entered by someone not familiar with the correct procedure. The database now features pop-up options for the relevant positions, so that the same error could not be made.
3.3 The respondent repeated that it regretted the error in the case of the complainant's application. It said, however, the problem arose as a consequence of human error as opposed to design. It said that it was unaware of the complainant's application, and suggested that it could therefore not have discriminated against her. It said also that the successful candidate took up the post on 29 June, so that by the time it discovered the complainant's application in July it was unable to correct the error.
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 ground of gender 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 gender. 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
The complainant of discrimination against the complainant
4.3 The procedural rule prescribed in cases of gender discrimination is that provided by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). In a recent claim the Labour Court said that this meant "...where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]).
4.4 The requirement therefore is for the complainant to establish those facts from which an inference of discrimination may be drawn. If she successfully achieves this, the respondent must demonstrate that discrimination did not occur.
4.5 The facts as established in this case are as follows: the complainant applied in April 2002 for consideration for the position of Park Constable; a vacancy arose for such a position in May 2002; the respondent searched its database for interested applicants and failed to discover the complainant's application due to an input error.
4.6 I note the respondent's evidence that the previous incumbent of the position was female. The complainant did not dispute this, but said she had been told by a Park Constable that the position had been given to that woman because of union involvement. This was directly contradicted by the respondent, its representative at the hearing saying that he had interviewed her himself. He did not dispute that there may have been union agreement that a post should be filled, but he was adamant that the successful female candidate at that time had been the best candidate as demonstrated through a competitive process.
4.7 In considering all of the evidence given to me, I am struck by the amount of information relied on by the complainant which was garnered from conversations she had with various members of the park staff. This is of course hearsay, and must be considered cautiously. However, with due respect to the individuals involved, it is not feasible that they would have accurate and dependable information to provide. They were not involved in the selection process, and would have no personal knowledge of the process of filling
vacancies. On the balance of probabilities, I must consider that the complainant has failed to demonstrate a prima facie case of discrimination and that the respondent does not have to rebut the allegation of discrimination.
5.1 Based on the foregoing, I find that the Department of Environment, Heritage and Local Government did not discriminate against Ms Hayes on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998.
16 March 2004