Ms Mary Bermingham
(Represented by MANDATE)
Muldowney's Licenced Premises
(Represented by Abbott International Consultancy Services)
The dispute concerns a complaint that Muldowney's licenced premises, Rathcoole, Co Dublin discriminated against the complainant on the grounds of her age contrary to the provisions of the Employment Equality Acts, 1998 to 2007 (referred to here as the Act).
2.1 The complainant alleges that she was treated unfavorably in relation to the allocation of duties in her employment at Muldowney's licenced premises, Rathcoole for reasons related to her age.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on the 2nd February, 2005. The parties attempted unsuccessfully to resolve the matter at mediation and in accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act on 12th June, 2006. A hearing of the complaint scheduled for 10th October, 2006 was re-scheduled for 30th January, 2007 at the request of MANDATE due to a bereavement. The complainant and her MANDATE representative attended on the re-scheduled date however the hearing did not proceed due to illness and non-attendance of the respondent's representative. A hearing of the complaint proceeded on 15th February, 2007 and further correspondence in the matter ensued up to March, 2007.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant commenced employment at Muldowney's licensed premises as a cleaner in the year 2000 when the pub was in different ownership. In 2001 the then owner offered an employee a concession to run the food operation and the complainant was assigned additional hours and duties in the kitchen area giving her 18 hours per week cleaning duties and 15 hours per week kitchen duties, a total of 33 hours per week. The pub changed ownership in 2004 when it was bought by the current owners and the catering concession was awarded to another person (referred to below as the catering operator). The complainant went on annual leave on 6th August, 2004 and when she returned on Monday 16th August, 2004, she was informed by the new catering operator that she would not be working in the kitchen anymore. A colleague of the complainant who had similar duties and who was of a similar age had also been informed by the catering operator on the preceding Friday, 13th that her services would no longer be required in the kitchen. This colleague was present at the hearing and gave evidence in agreement with the complainant's version of events. The complainant asked the catering operator why she would no longer be working in the kitchen and alleges that she was told that she was too old for the work, that the pots were too heavy and that she couldn't cope with the heat in the kitchen. The complainant believes that the catering operator wanted a 'younger profile' on the food service and alleges that both herself and her colleague had to tolerate degrading remarks such as 'don't be picking on the auld ones' from management. She states that there had never been any difficulties or complaints about her work in the kitchen before then and that the catering operator never enquired from her if the work was too strenuous for her. The complainant states that management increased her general cleaning hours and those of her colleague to make up for the loss of hours in the kitchen area and that there was no actual loss of working hours. MANDATE argues that the complainant should be compensated for the hurt and anxiety she had suffered over what it regards as discriminatory treatment on the age ground.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the complainant was transferred into the employment of the present owners of Muldowney's licensed premises when the business was transferred to them on 1st March, 2004. The catering was operated on a concession basis and the complainant and her colleague were allocated cleaning work in the kitchen area between 12.30 and 3.00 p.m. and worked in other parts of the premises at other times. The catering concession was awarded to another person in August, 2004 and the respondent states that the new catering operator exercised his right to undertake the cleaning himself in the kitchen area. The complainant and her colleague were allocated other cleaning duties on the premises and their hours and rates of pay were unchanged. The respondent rejects the allegation that the complainant and her colleague were told by the new catering operator that they were too old for work in the kitchen and states that the allegation is uncorroborated and denied by the catering operator and in any event he was not their employer. The catering operator is no longer involved in the food operation at the pub. The respondent states that the complainant and her colleague were invited to present a cleaning schedule of their choosing to address a claim that their work was less interesting however the offer was not taken up. The respondent also argued that the complainant was offered specific training in relation to food safety and hygiene (HACCP) which would have been of benefit to her in a food environment but that she declined the offer. The respondent states that the complainant continued to work amicably on the premises and resigned voluntarily in 2005 when she got another job in the area.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. It is for the complainant in the first instance to adduce evidence from which it may be presumed that discriminatory treatment on the age ground has taken place. It is undisputed by the parties that the complainant was taken off kitchen duties and allocated other cleaning duties to make up the hours however it is disputed that the catering operator cited reasons related to the complainant's age for so doing. While the respondent has argued that the complainant's version of events is uncorroborated, her work colleague attended the hearing and gave evidence in agreement with the complainant that the catering operator considered them to be too old for work in the kitchen. I considered the evidence of the complainant and her colleague to be credible and that they were led to believe by the catering operator that they were considered too old for work in the kitchen. I will allow therefore that burden of proof must shift to the respondent to prove the contrary.
5.2 I note that the complaint has been brought against the complainant's employer. The catering operator was not the complainant's employer and neither was the catering operator an employee of Muldowney's. However insofar as the catering operator had the authority to decide on the complainant's duties within the kitchen area I would regard the catering operator as an agent of the respondent as referred to in Section 15 of the Act and any breach of equality legislation by the catering operator should be treated as a breach by the complainant's employer. While the respondent's representative was present at the hearing, no members of management were present and the catering operator, who is no longer involved at the pub, was not present either.
5.3 In further support of her contention that she was removed from kitchen duties because of her age, the complainant gave evidence that a younger colleague in her late 30's was retained in the kitchen after she was removed however the respondent's representative gave evidence that this person applied to the catering operator for a position and having been offered a position, resigned from her employment with Muldowney's. Nevertheless I would accept the complainant's contention that an element of substitution of a younger person took place.
5.4 I am satisfied that the respondent has failed to adduce evidence of sufficient credibility to rebut the inference of discriminatory treatment on the age ground and that the complainant's age was a factor in the decision of the catering operator not to retain her on food related duties. I am satisfied also that the complainant's concerns in this regard were brought to the attention of management at the pub. I note that although the complainant was removed from working in the kitchen area, her working hours were made up by additional hours in other areas of the pub and that she suffered no loss of earnings.
6.1 On the basis of the foregoing, I find that the respondent did discriminate against the complainant in terms of Section 6(2)(f) and contrary to the provisions of Section 8 of the Employment Equality Acts, 1998 to 2007. I order that the respondent pay to the complainant compensation in the amount of €2,000 in respect of the discriminatory treatment and being a compensatory payment without any element of pay is exempt from income tax.
18 July, 2007