(represented by John J. Quinn and Co. Solicitors)
Longford Society for the Prevention of Cruelty to Animals charity shop
(represented by Groarke and Partners Solicitors)
File reference: EE/2006/102
Date of issue: 4th November 2008
1.1 This disputes concerns a complaint by Mr. Peter Murray against Longford S.P.C.A. charity shop in relation to discrimatory treatment in access to employment, on the grounds of gender, marital status, religion and disability contrary to the Employment Equality Acts 1998 to 2008.
1.2 The complainant referred his complaint under the Employment Equality Act 1998 (as amended) [hereinafter referred to as 'the Act'] to the Director of the Equality Tribunal on 6th April 2006. In accordance with her powers under Section 75 of that Act the Director delegated the case on 20th March 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint preliminary hearing was held on 18th July 2008 to examine whether proceedings were issued against the wrong respondent. Further correspondence was received from the respondent on 22nd July.
2. Summary of the complainant's case on the preliminary issue
2.1 The complainant submits that he visited the Longford S.P.C.A Charity Shop on three occasions in late March/early April 2006. On his first visit, he became aware that one of the people working in this shop was due to finish up there as her placement on the Community Employment Scheme was due to end. It was suggested to him by a volunteer there that he should apply for the position. A few days later, Mr. Murray returned to the shop to express an interest in this job. He submits that he was informed by a lady working, whom he assumed to be the Manager, that the Longford S.P.C.A. charity shop did not employ men. Mr. Murray subsequently attended the FÁS office in Longford. He was informed by a FÁS employee that the complainant should talk to the Community Employment Supervisor, Ms. A., in the Longford Slashers G.A.A. club. The complainant maintains that Ms. A opined to him that he might experience difficulties working with the women who ran the L.S.P.C.A. shop. Mr. Murray submits that he then returned to the shop where he was informed by Ms. B that 'men do not work here because of the clothes'.
2.2 The complainant also submits that he had named 'FÁS C.E. Scheme, Market Square, Longford' and 'I.S.P.C.A shop, Market Square, Longford' as respondents when he made his initial complaint in the EE1 Form. Mr. Murray maintains that it is reasonable to assume that the charity shop is the correct respondent as if he obtained the position his day-to-day work would be in the shop. He withdrew his claim against FÁS when he was informed by that entity that it was the incorrect respondent (25th July 2006). He amended the title of the other respondent to 'Longford SPCA Charity Shop' on being notified that it was incorrectly named in his EE1 form. Neither of the respondents he named on his EE1 form informed him that the correct respondent was Flipeadoiri Longphort Teoranta (known locally as Longford Slashers) who run the Community Employment Scheme. The complainant submits that this was unfair as 'he only was a man on the street and had no legal qualifications'. Mr. Murray did not engage legal representation until after mediation had failed (September 2006).
3. Summary of the respondent's case on the preliminary issue
3.1 The Longford Society for the Prevention of Cruelty to Animals is a member of the Irish Society for the Prevention of Cruelty to Animals which is a federation of member societies. Each member society must abide by ISPCA animal welfare policies but its day-to-day running is a matter for the individual society. The Longford society runs a charity shop as a means of raising funds for the work of the society locally. The shop sells donated items e.g. books, clothes etc. Unpaid volunteers staff the shop.
3.2 The shop is assisted in its work through the occasional placement of staff on the FÁS Community Employment Scheme. This scheme is administered by Flipeadoiri Longphort Teoranta. It is a limited company established in 1980 and is a separate corporate body to FÁS.
3.3 In March and April 2006, the respondent submits that a vacancy notice was displayed in the FÁS office, Longford. This notice advertised a part-time position for a 'Shop Assistant - CE Scheme' and described Longford Slashers as the employer. It states 'applicants for all CE vacancies must meet specific eligibility criteria. To confirm eligibility you must enquire at your local FÁS office. Please phone Ms. A (Supervisor of Longford Slashers C.E. scheme) at [phone number] for further details and to arrange an interview'.
3.4 The respondent submits that this clearly required interested applicants to contact Ms. A. The respondent maintains that Ms. A, for all intents and purposes, would be Mr. Murray's manager if he was placed in the L.S.P.C.A. shop. She would formally interview him (with a FÁS employee rather than a person connected with L.S.P.C.A.), she would pay his wages and he would report to her regarding sick leave etc.
3.5 The respondent submits that it is reasonable to assume the complainant was been aware of this notice as he attended the FÁS office to enquire about the vacancy. In breach of specific instructions outlined in the notice, the complainant requested an interview on three occasions in the shop. On the first occasion, the shop was staffed by two elderly volunteers (Ms. B and Ms. C). The respondent maintains that the shop was quite full and the complainant was confrontational. Ms B. did say 'we do not usually have a man helping out here'. However, the respondent submits that the informal context in which this occurred was not an interview for the position.
3.6 In evidence, Ms. A denied that she said the complainant would experience difficulties working with Ms. B and Ms. C.
4. Conclusions of the Equality Officer
4.1. The issue for me to decide is whether the Longford S.P.C.A. charity shop is the correct respondent i.e. whether the relationship of prospective employee and employer existed between the complainant and the named respondent. In making my decision, I have taken into account all submissions on this preliminary issue, both written and oral, from both parties.
4.2 Section 8 (1) of the Act states that an employer shall not discriminate against an employee or prospective employee in relation to access to employment. An employer, in the context of this Act, means (in relation to an employee) the person with whom has employee has entered into or for whom the employee works under a contract of employment. Section 2 states that a contract of employment can be express or implied and, if express, oral or written.
4.3 Flipeadoiri Longphort Teoranta is the sponsor of the Longford Slashers Community Employment Scheme. Flipeadoiri Longphort Teoranta is a separate corporate body to FÁS or the Longford S.P.C.A. charity shop. Ms. A, the C.E. Scheme Supervisor, is responsible for the recruitment and management of participants on the programme. The wages are paid weekly by Flipeadoiri Longphort Teoranta. FÁS reimburses Flipeadoiri Longphort Teoranta by means of a wages grant. The volunteers that staff the Longford S.P.C.A. shop have no involvement in the recruitment of participants. It was only at the stage that a participant would be selected for the C.E. scheme (by Ms. A in conjunction with FÁS) that they would have a conversation with him/her about what the job entailed.
4.4 In oral evidence, Ms. B stated that 'they were delighted to get anyone Ms. A sends down'. The complainant submitted that the day-to-day duties would be conducted within the L.S.P.C.A. shop so therefore it is the correct respondent. However, I am satisfied that the complainant is the prospective employee of Flipeadoiri Longphort Teoranta in this case. If Mr. Murray was taken on to work in the Longford S.P.C.A. shop his contract of employment would be with Flipeadoiri Longphort Teoranta rather than the named respondent. Flipeadoiri Longphort Teoranta is the corporate body primarily responsible for the recruitment, selection, appointment, discipline and dismissal of Community Employment Scheme participants who could be placed in this shop. Therefore I find that proceedings have issued against the wrong respondent - Longford S.P.C.A. Charity Shop - in this case.
As the incorrect respondent is named, I cannot proceed further with this investigation.
4th November 2008