EQUALITY OFFICER'S DECISION NO: DEC-E/2006/027
CZERSKI (REPRESENTED BY THE EQUALITY AUTHORITY)
ICE GROUP(REPRESENTED BY DOYLES SOLICITORS)
This dispute involves a claim by Ms. Borzena Czerski that she was discriminated against by Ice Group on grounds of gender and race, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to sections 8, 11, 22 and 31 of that Act, in relation to access to employment following an interview for the position of Production Operative with one of the respondent's clients in August 2001. The respondent rejects the complainant's assertions.
2.1 The respondent is an Employment Agency. The complainant replied to an advertisement placed in the Western People by the respondent for the position of Production Operative with one of its clients and attended for interview in August, 2001. She contends she was told by the respondent that her name would be kept on file for future vacancies and that the respondent's failure to select her for employment subsequently constitutes less favourable treatment of her on grounds of gender and race contrary to the Employment Equality Act, 1998. The respondent rejects the complainant's contentions and states that she was unable to comply with the requirement to furnish two references.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 19 February, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act on 10 October, 2002. A written submission was received from the complainant on 6 June, 2003 and copied to the respondent for response in accordance with the procedures operated by the Tribunal. The respondent failed to furnish a response and a Hearing of the complaint took place on 1 July, 2004 which was attended by both parties. Subsequent to this Hearing a number of issues required further clarification and the respondent was represented by its legal representative in these matters. Considerable written correspondence followed and this process concluded in March, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The respondent is an Employment Agency. The complainant, who is a native of Poland, replied to an advertisement in the Western People, inserted by the respondent, which sought applications for positions as Production Operative in the locality. She adds that at that time she was working as a Production Operative with another company from 2000, performing duties which were similar to those involved with the posts advertised and was seeking alternative employment due to a downturn in business with her current employer. She states that she submitted an application form and CV to the respondent on 7 August, 2001. This form required applicants to furnish details of two referees. The complainant states that she was only able to furnish one employment related referee as she was at home rearing her family between 1986 and 2000 and prior to that she was employed in Poland. She alleges that she spoke by telephone with Ms. G, an employee of the respondent, who informed her that this was not a problem. The complainant states she was interviewed by Ms. G on 21 August, 2001 and there was no mention of problems with references. She adds that following the interview Ms. G informed her there were no vacancies at that time but she would keep her name on file.
3.2 The complainant states that the respondent visited her workplace in early September, 2001 to conduct interviews for positions, including posts as Production Operative, at APC Ireland. The complainant did not attend for interview as she believed her name was on file following her interview with Ms. G the previous month. She adds that when some of her colleagues were recruited for APC Ireland following these interviews she telephoned the respondent to enquire as to why she had not been selected for the posts. She contends that she spoke with Ms. B, another employee of the respondent, who informed her that APC Ireland was looking for men and in any event the complainant only had one referee when two were needed. The complainant states that this was the first occasion this issue was raised with her and emphasises that the respondent never indicated to her that a character reference or some other form of reference would be acceptable. She states that had it done so she would have been able to furnish same as she needed them previously as regards her citizenship application (1995) and matters involving the health board. She adds that she offered to acquire a reference from her Polish employer, notwithstanding that she had not worked there since 1986 and this was rejected by the respondent. She contends therefore that the absolute insistence by the respondent that she furnish two employment related references constitutes less favourable treatment of her on grounds of race.
3.3 The complainant also contends that she was discriminated against on grounds of gender. In support of this assertion she points to the alleged comment of Ms. B in the course of a telephone conversation in early September, 2001 that the post involved heavy lifting and APC were only recruiting men. The complainant also relies on the newspaper advertisement with states that the posts involved manual handling. She refers to the decision of the Labour Court in Mary Conroy v PRK Logistics Ltd1 which held that the complainant's difficulty in lifting weights and her gender constituted prima facie evidence of less favourable treatment on grounds of gender.
3.4 The complainant notes that the EU Council Directive implementing the principle of equal treatment between persons irrespective of racial or national origin2 (Race Directive) was due for implementation in this jurisdiction by 19 July, 2003 but was not transposed until the coming into force of the Equality Act, 2004 in July of that year. She submits that the Equality Tribunal, as an organ of the State, is bound by the Directive. She further submits that the Labour Court has consistently shifted the burden of proof to the respondent in cases of non-gender discrimination where a prima facie case has been established and it has set out its rationale for adopting that approach in detail in Masinde Ntoko v Citibank3, Tsourova v Icon Clinical Research Ltd4 and Campbell Catering Ltd v Aderonke Rasaq5. She argues therefore that the Tribunal should apply the same approach in the instant case.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It states that it is an Employment Agency and that the complainant responded to an advertisement it placed in the Western People in August, 2001 in which it indicated it was seeking to place persons in temporary Production Operative roles on behalf of a client. The advertisement did not specify the name of the client. The complainant responded to the advertisement and was sent a Database Registration Form, which was returned to it completed on 9 August. It adds that on reviewing the form it noted the complainant had only provided details of one referee. It considered this problematic, as its own policy and the Service Agreement it had with its client APC Ireland required two referees and it was its policy to seek references from those referees before it took individuals on to its books and placing them with clients.
4.2 The respondent states that Ms. G interviewed the complainant on 21 August, 2001 and informed her of this difficulty. It adds that Ms. G enquired of her whether or not a second referee could be provided and she replied that she could only furnish one employment related reference. In an effort to facilitate the complainant Ms. G enquired if she could furnish a character reference to which the complainant again replied no. It also denies that the complainant ever offered a reference from her Polish employer. The respondent states that in the absence of a second referee it had no option but to inform the complainant that no suitable employment was available at that time. The respondent accepts that the complainant subsequently spoke with Ms. B on the telephone and that it had placed people with APC Ireland - all of whom were able to furnish two referees. It denies that Ms. B told her APC Ireland was only looking for men but accepts Ms. B confirmed that the posts involved manual handling - a point that had been included in the newspaper advertisement. It also accepts Ms. B informed the complainant that in order to be placed with APC Ireland an applicant had to be able to furnish two referees.
4.3 The respondent states that the alleged incidents took place in August/September, 2001. It submits therefore that neither the provisions of the EU Council Directive implementing the principle of equal treatment between persons irrespective of racial or national origin6 or the provisions of the Equality Act, 2004, which inter alia, gave legal effect in this jurisdiction to that Directive, are not applicable in this case as they cannot have retroactive effect. It notes that the Tribunal has adopted the practice of shifting the burden of proof to the respondent once a prima facie case of discrimination had been established and argues that it has misdirected itself in law by introducing a criterion which did not exist in the statute in force at the time citing the judgement of Keane J in Minister for Transport, Energy & Communications v Campbell7 in support of this contention.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not Ms. Czerski was directly or indirectly discriminated against by Ice Group on grounds of race and gender, in terms of section 6 of the Employment Equality Acts, 1998 and contrary to sections 8, 11, 22 and 31 of that Act. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
5.2 I will examine the issue of the burden of proof in the first instance. It is the well settled practice of this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination which is similar to that applied in gender based claims. This requires the complainant to establish, in the first instance, facts from which it can be inferred that s/he was treated less favourably on the ground(s) cited. It is only when the complainant has discharged this burden to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The rationale for adopting this approach has been set out by the Labour Court in the decisions cited by the complainant at paragraph 3.4 above and the Doctrine of Precedent requires this Tribunal to follow those decisions unless the circumstances of the case can be distinguished. The Race Directive was adopted by the EU Council of Ministers on 29 June, 2000. Article 8 of the Directive provides for a burden of proof which is similar to the approach applied by this Tribunal and the Labour Court. It is well settled that in interpreting national law this Tribunal is obliged to do so in the light of the wording and purpose of a Directive so as to achieve the outcome pursued by it8. Whilst the events giving rise to this complaint occurred before the Race Directive was transposed into Irish law (July, 2004) the recent judgement of the European Court of Justice in Mangold v Helm9 makes it clear that the national court must guarantee the full effectiveness of the general principle of non-discrimination, by setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that Directive has not yet expired. The approach adopted by this Tribunal previously is consistent with the Directive and in light of the forgoing I propose to adopt it in the instant case.
5.3 Having evaluated all of the evidence submitted by the parties I am satisfied that the complainant has failed to establish a prima facie case of direct discrimination on each of the grounds of gender and race. In addition, I am not convinced, on balance, that the complainant was told APC Ireland was looking for men when she spoke with Ms. B and I accept as more likely that she was told by the respondent the posts involved heavy lifting. I do not consider a statement to that effect to be sufficient, of itself, to raise an inference of less favourable treatment and I find that she has failed to establish a prima facie case of indirect discrimination on grounds of gender. The respondent states it requires a person seeking to register with it to furnish two referees before it will place that person on its books. It is absolutely entitled to place this condition on applicants provided the practice is not contrary to the employment equality legislation. It is common case between the parties that the complainant only furnished one work related referee on her registration form. She is adamant she was not informed by the respondent that this was a problem until she spoke with Ms. B on the telephone in early September, 2001. She is equally adamant the respondent did not inform her that a character reference would suffice. I note from the Service Agreement between the respondent and APC Ireland contains the following statement "Two career references will be checked prior to starting with APC". No alternative to this requirement is mentioned in the document. I note the complainant's evidence that had she been asked for a character reference she could have furnished one without difficulty as she was required to obtain character references in 1995 as part of her application for Irish citizenship. In light of the foregoing I am satisfied, on balance, that the complainant's version of events in August/September, 2001 is to be preferred and that she was not recommended for employment with APC Ireland, despite the fact that she was considered suitable by the respondent in all other areas and had received an excellent reference from her current employer, because the respondent required two employment related referees and was unwilling to accept any alternative to that requirement in the circumstances of this particular case.
5.4 Section 31 of the Employment Equality Act, 1998 provides as follows:
"(1) Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment --
(a) applies to all the employees or prospective employees of a particular employer who include C and D or, as the case may be, to a particular class of those employees or prospective employees which includes C and D,
(b) operates to the disadvantage of C, as compared with D, in relation to any of the matters specified in paragraphs (a) to (e) of section 8(1),
(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and
(d) cannot be justified as being reasonable in all the circumstances of the case,
then.... for the purposes of this Act the employer shall be regarded as discriminating against C, contrary to section 8, on whichever of the discriminatory grounds gives rise to the relevant characteristics referred to in paragraph (c).".
5.5 It is accepted by the respondent that it requires a person seeking to register with it to furnish two referees before it will place that person on its books. As I stated in paragraph 5.3 above I am satisfied that in the instant case this requirement meant two employment related referees. I am satisfied that the application of such a requirement operates to the disadvantage of a non-Irish national as compared with an Irish national. I am further satisfied that the requirement could be complied with by a substantially smaller number of prospective employees who are non-Irish nationals as compared to prospective employees who are Irish nationals. Consequently, I find that the complainant has established a prima facie case of indirect discrimination on grounds of race. The Act provides a defence to the respondent in these circumstances if it can demonstrate that the requirement can be justified as reasonable in the circumstances. No evidence was adduced by the respondent in this regard and I find therefore that the respondent indirectly discriminated against the complainant on grounds of race contrary to section 31 of the Employment Equality Act, 1998.
6.1 I find that -
(i) the complainant has failed to establish a prima facie case of discrimination in relation to her assertion that she was directly discriminated against by the respondent on grounds of race and gender.
(ii) the complainant has failed to establish a prima facie case of discrimination in relation to her assertion that she was indirectly discriminated against by the respondent on grounds of gender.
(iii) the respondent indirectly discriminated against the complainant on grounds of race contrary to section 31 of the Employment Equality Act, 1998.
6.2 I therefore order, in accordance with section 82 of the Act, that the respondent pays the complainant €7,000 by way of compensation for the distress suffered by her as a result of the discrimination. This award does not contain any element in respect of loss of income on the part of the complainant.
13 June, 2006
2 Council Directive 2000/43/EC of 29 June, 2000
3  15 ELR 116
6 Council Directive 2000/43/EC of 29 June, 2000
7  ELR 106
8 Marleasing SA v La Commercial Internacional de Malimentacion SA  ECR 4135
9 Case C14/04  IRLR 143