Ms C and Ms P
A Hotel, Co Westmeath
(Represented by Roger Greene & Sons, Solicitors)
1.1 This dispute concerns a claim two complainants that they were discriminated against by a Hotel on the ground of disability, contrary to the provisions of the Employment Equality Act 1998, when they were not offered employment. They originally claimed discrimination on the grounds of gender and marital status also, but these claims were withdrawn prior to the hearing of the complaint.
1.2 The complainants referred claims to the Director of Equality Investigations on 13 May 2004 and 23 September 2004 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 27 January 2005 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. Submissions were sought from the parties, and a joint hearing was held on 16 May 2006.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 The complainants, who are sisters and in receipt of Disability Allowance, say they sent in letters and their CVs to the respondent hotel in March 2004 seeking jobs in housekeeping/cleaning. They say they spoke to the Cleaning Manager in April 2004 to enquire further about employment. They claim they were told they would be employed after the Hotel opened in May. The complainants allege that they were subsequently were told the Hotel was not busy and were refused employment when they telephoned in May.
2.2 The complainants claim they wished to participate in the EBT (Employer Based Training, a work experience programme run by the National Training and Development Institute). They say they contacted the Hotel again in September 2004, and were told by a male manager that they would be better off with a job rather than work experience. They say they attended for an interview on 7 September and subsequently got letters saying they were unsuccessful. They claim that they had been promised the jobs before the interview, and say they were deprived of both employment and the EBT programme by the respondent.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent says it is reluctant to rely on technicalities, but claims that the various proceedings were not instituted against the correct respondent. It points out that the first complaint referred to the "Manager over the cleaning" as the respondent, and the second named the Human Resources (HR) Manager. The respondent says neither of these people has the legal capacity to enter into contracts of employment, and it submits the complaints are not properly before the Equality Tribunal.
3.2 Notwithstanding the above, the respondent denies discrimination against the complainants. It says that it had advertised widely in the newspapers and held an open recruitment day on 14 March 2004, and it had filled all of its vacancies when it received application letters from the complainants on 19 March. The respondent says that the complainants were told in April 2004 that all positions had been filled and that positions may become available over the course of the summer depending on the volume of business. The respondent claims that the complainants telephoned the Hotel after it opened in May and asked the Executive Housekeeper for employment. The respondent alleges that the complainants became abusive when told there were no vacancies.
3.3 The respondent says that the complainants were again abusive in a telephone conversation with the HR Manager later that day. The respondent claims that the complainants telephoned the Hotel several times during the month of May, speaking to several members of staff. The respondent says these conversations were always abusive and intimidating, with the complainants threatening to take the Hotel to court for not employing them, and the complainants had to be asked to refrain from telephoning.
3.4 The Hotel says that at no time in the telephone conversations in April or May were the complainants offered employment. It says its recruitment policy is that candidates must always be interviewed and reference checked before being offered positions. If it is decided to offer positions, the HR Department would then send a contract of employment to the candidate. The respondent says this procedure is strictly adhered to.
3.5 The respondent says that the complainants contacted the Hotel again in September 2004, this time speaking to a new Housekeeping Manager. As he had only been in his position since August, the respondent says he was unaware of the history of abusive and threatening calls previously made by the complainants and he invited them to attend for interview for Accommodation Assistant vacancies on 7 September. The interviews were conducted by the Housekeeping Manager and the HR Manager, who had been absent on leave when the complainants were invited for interview. The respondent says the HR Manager was fully aware of the complainants' aggressive behaviour, but it was felt it would be inappropriate to withdraw the invitation to interview. The respondent says it wished to give the complainants every opportunity to resolve their previous behaviour, and to ascertain if they would be suitable for employment.
3.6 The respondent says the interviews were conducted in a standard manner, and the complainants were asked standard questions. The respondent claims that the complainants were extremely rude during the interview and refused to answer any of the questions put to them. It says they said the Hotel had to give them jobs and that they knew the law. The Hotel says their actions frustrated the interview process and demonstrated that they were manifestly unsuitable for employment in positions where they would be interacting with the public. The respondent says the complainants ended the interview by saying that either way they would get money out of the Hotel. It says they continued to shout and scream at the HR Manager in the lobby in front of guests.
3.7 The respondent says that the HR Manager wrote to the complainants on 14 September, advising them they had been unsuccessful. It says the complainants made further contact by telephone on 6 October, asking the HR Manager why they had been unsuccessful. The respondent asserts that the HR Manager told them the successful candidates had better and more relevant experience than the complainants. It claims that the complainants again started to scream and shout at the HR Manager and threatened to "take her to the High Court" and said they would ensure she lost her job. The respondent says the HR Manager had to ask the complainants again not to telephone the Hotel in such an abusive and threatening fashion.
3.8 The respondent submits that the complainants were never given job offers which were subsequently rescinded. It says the complainants were not considered for employment in March 2004 because there were no vacancies at the Hotel, and it had no knowledge that the complainants had a disability until the institution of proceedings in May 2004. The respondent says the complainants were not successful at interview in September 2004 because of their behaviour and lack of suitable experience. The respondent submits that the complainants have failed to establish any facts which might give rise to a presumption of discrimination, and that they have failed to establish a prima facie case of discrimination on the disability ground.
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. It should be noted that the respondent in written submission pointed out that the complainants had not advanced any medical evidence of disability. At the hearing of the complaints, however, the complainants provided documentation from the Department of Social and Family Affairs which established that they were in receipt of Disability Allowance. The respondent confirmed it was not pursuing this aspect of its case, and the hearing proceeded on the basis that the complainants had a disability in accordance with the provisions of the Act.
4.2 The first matter to be considered is whether these complaints are correctly before the Tribunal. The complainants named "the Manager over the cleaning" and the HR Manager as their prospective employers whereas the respondent argued that the complaints should have been lodged against the Hotel. I accept the respondent's argument in this regard. However, I disagree with the contention that the Tribunal has no power to investigate a claim against the Hotel simply because the complainants did not specifically name the Hotel as the respondent.
4.3 In the Labour Court determination Paudie O'Shea and Patrick McCarthy (ED/01/45 Determination No 052), the Court noted that the actual claim referred to it was "directed against Paudie O'Shea, Blue Flyer Developments". Saying that it was told at the hearing that at all material times the complainant's employer was Mr Paudie O'Shea, the Court amended the name of the respondent in the title of its determination. In this complaint, I am satisfied that the Hotel was the complainants' prospective employer at all material times and I am so amending the name of the respondent in the title of my decision.
4.4 The complainants alleged that the respondent discriminated against them on the ground of disability 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, including disability. Section 8 provides that
(1)In relation to-
(a) access to employment...
an employer shall not discriminate against an employee or prospective employee...
4.5 The Labour Court, in a recent determination of a claim on the disability ground (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainants have established the relevant facts.
4.6 The essence of the complainants' case is that they were promised employment by the respondent in telephone conversations and that these offers were subsequently withdrawn. The respondent says that the complainants were never offered jobs and that, on the occasion they were interviewed, their behaviour meant they were unsuitable candidates for employment.
4.7 The respondent submitted copies of several newspaper advertisements it had placed during February 2004, seeking applicants for various positions. It also submitted a copy of its newspaper advertisement on 9 March 2004, which advertised the open recruitment day taking place on 14 March. Evidence was given that some 200 people were interviewed that day, and the respondent said that all of its positions were filled by the time the complainants' applications were received on 19 March. The complainants confirmed that they did not attend the open day. On considering the evidence adduced, I am satisfied that the respondent did not have any vacancies when the complainants submitted their applications. I am also satisfied that no promises of employment, contrary to the respondent's normal recruitment policy, were made in the telephone conversations with the complainants during April and May. I note that the letters and CVs submitted by the complainants made no reference to their disability, and I find that the failure to offer them employment did not constitute discrimination on the disability ground.
4.8 In relation to the interview held in September, I do not consider it probable that an offer of employment was made prior to the interview. The complainants denied that they were abusive at any stage, but several employees of the respondent gave evidence of having taken threatening telephone calls. At the hearing of the complaints, one of the complainants agreed that she might have been upset after the interview as she thought she would be taken on immediately. Having considered the evidence, particularly of the complainants, I am of the opinion that they felt they were entitled to employment and were disappointed when they were unsuccessful. They have not, however, adduced any evidence that their treatment was based on their disability. In the circumstances, I find that they have failed to establish a prima facie case of discrimination on the ground of disability and the respondent therefore has no case to answer.
5.1 Based on the foregoing, I find that the Hotel did not discriminate against Ms C and Ms P contrary to the provisions of the Employment Equality Acts 1998 - 2004.
30 August 2006