Connolly AND Bright Sparks Bilingual Early Childhood Centre, Co Tipperary
1.1 This dispute concerns a claim by Mr Pat Connolly that he was discriminated against by Bright Sparks Bilingual Early Childhood Centre on the ground of gender, contrary to the provisions of the Employment Equality Act 1998, when he was told that an advertised post was for females only.
1.2 The Equality Authority, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 9 May 2001 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director delegated the case on 20 May 2001 to 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. In October 2001 the Equality Authority advised that it was no longer representing the complainant. A submission was sought from the complainant, but he failed to provide it until 2 August 2002. The respondent subsequently failed to respond to correspondence over a period of several months. For operational reasons, the complaint was re-delegated on 21 March 2003 to Anne- Marie Lynch, also an Equality Officer, for the exercise of the relevant functions under Part VII of the Act. Following the respondent's ongoing lack of response, a joint hearing of the claim was arranged for 24 September 2004 and both parties attended.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 An advertisement appeared in the 18 November 2000 edition of the Tipperary newspaper The Nationalist seeking applications for the two positions of Manager and Childcare Worker in the respondent centre. Applicants were asked to send their CVs to the Centre, and two mobile telephone numbers were provided to allow prospective applicants make informal enquiries.
2.2 The complainant said that on 17 November 2000 he telephoned one of the numbers given to enquire about the position of Childcare Worker. He said that he was told the position was for females only and that this was in accordance with Health Board regulations. He said that when he queried this, he was asked why he was making an issue of it. The complainant said the person with whom he was speaking was very rude and aggressive. He said he was not asked about his qualifications or experience, nor was he asked whether he had Garda clearance. The complainant said that at the end of the brief telephone conversation he was invited to submit his CV, which he declined to do.
2.3 The complainant wrote to the respondent centre on 22 November 2000, advising that he intended taking legal action on the issue of gender discrimination with the Equality Authority. He did not receive a reply to this letter. In January 2001, the Equality Authority wrote on his behalf to the respondent, but this letter was also ignored.
2.4 The complainant said that he had a Certificate and Diploma in Youth and Community Work from University College Cork. He had had much involvement in a youth club in Cashel, and at the date of the hearing was employed by the South Eastern Health Board as a Care Worker for people with disabilities.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The hearing was attended by Mr Paul Quish and Ms Liz Cummins, joint owners of the respondent centre. Following some discussion of their previous failure to respond to the Tribunal's correspondence, they indicated that they had had no intention of showing disrespect to the Tribunal. They considered the complaint to be frivolous, but acknowledged that disregarding the Tribunal had been inappropriate.
3.2 In relation to the claim itself, Mr Quish acknowledged that he had had a telephone conversation with the complainant. He recalled this because the complainant was the only male to enquire about the advertisement. He said, however, that the complainant had enquired about the Manager position and Mr Quish denied absolutely that he had said that position was for females only. He said that he told the complainant he was welcome to apply, and should detail his management experience in his CV, but his lack of specific childcare qualifications and experience would make it unlikely that he would succeed. At this point, the complainant became very aggressive.
3.3 Mr Quish said that the complainant did not refer to the Childcare Worker post, and if he had he would have been told that he was ineligible. The post concerned was a six-month contract post, funded by FÁS as linked work experience, and restricted to people aged between 18 and 21 years. Mr Quish insisted that he would not have invited the complainant to submit his CV for this post.
3.4 Bright Sparks provides both a crèche and after-school service, and the respondents agreed that it was subject to Health Board regulation, in accordance with the provisions of the Child Care (Pre-School Services) (Amendment) Regulations 1997 (SI No 268 of 1997). They said, however, that gender was not referred to in any way in the regulations. The Centre had had two previous Childcare Workers who were male. Following the November 2000 advertisement, applications were received only from females and two females were appointed to the positions.
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 him 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...
an employer shall not discriminate against an employee or prospective employee...
4.3 The procedural rule applied in the case of gender discrimination is that prescribed by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). The Labour Court, in applying this rule in a recent case said this meant that "...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 he successfully achieves this, the respondent must demonstrate that discrimination did not occur.
4.5 There is no doubt that the complainant made a telephone call in respect of the newspaper advertisement, that he declined an invitation to submit his CV and that the conversation ended negatively. However, the content of the conversation is in dispute between the parties. Mr Connolly accepted that he was unable to provide a witness to his description of events. Ms Cummins supported Mr Quish's account, saying that she was present in the car where the mobile telephone was in hands' free mode. However, without impugning her honesty, I am unable to consider her an impartial witness. In the circumstances, I must decide on the balance of probabilities which version I consider to be more plausible.
4.6 The facts I have ascertained are as follows: the newspaper advertisement did not stipulate any requirements for either position. The Childcare Worker post did not require any qualifications or experience, but was subject to certain eligibility criteria with which the complainant could not comply. The Manager position required relevant childcare qualifications and experience, which the complainant did not have.
4.7 It appears to me that Mr Quish would not have invited the complainant to submit an application for the Childcare Worker post when he was patently ineligible even for consideration. I also do not see why Mr Quish would state that a post was reserved for females and yet invite a male to apply. It may be more plausible that he would invite an application for the Manager post from someone with management experience, with the possibility that the lack of a specific background in childcare may be outweighed by other relevant factors included on the CV. On balance, I am satisfied that the complainant enquired about the Manager position, or at least that Mr Quish understood him to have done so.
4.8 Taking into account the demeanour of both parties during the hearing, I find that the most likely scenario is that Mr Quish told Mr Connolly, possibly in a brusque manner, that he was unlikely to be successful and that Mr Connolly, reacting angrily, concluded that he was being dismissed because of a prejudice against men being employed by the respondent centre. I do not find that the evidence supports this conclusion, and I am satisfied that the complainant has failed to establish a prima facie case of discrimination.
The behaviour of the respondent
4.9 As I am not making a finding of discrimination, I cannot issue a binding decision in this claim. However, I would strongly recommend that the respondent reconsider its attitude to co-operation with statutory bodies such as the Equality Tribunal. No matter how frivolous or irrelevant a respondent considers a claim to be, it has an obligation to co-operate with the body investigating it, as it is obliged to cooperate with the courts generally. If the respondents in this claim had not attended the hearing, the decision would have issued based solely on the complainant's uncontradicted evidence. In the event of an appeal of this decision, I suggest that the respondent deal with the Labour Court more appropriately than it did with the Equality Tribunal.
5.1 Based on the foregoing, I find that Bright Sparks Bilingual Early Childhood Centre did not discriminate against Mr Connolly on the ground of gender, contrary to the provisions of the Employment Equality Act 1998, when he enquired about an advertised position.
22 October 2004