The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-033
Cedarway Limited, t/a Abbey Court Hotel, Nenagh
(Represented by Patrick F. Treacy & Co Solicitors)
File reference: EE/2007/261
Date of issue: 1 May 2009
Employment Equality Acts, 1998-2008, Sections 6 and 8 - Age - Access to employment.
1.1 This dispute concerns a claim by Mr John Danaher that he was discriminated against by Cedarway Limited t/a Abbey Court Hotel, Nenagh on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts 1998-2008 in relation to access to employment in terms of sections 8(1)(a) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 22 May 2007 under the Employment Equality Acts 1998 and 2004. On 21 January 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 4 March 2009 and final information was received on 23 April 2009.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant saw an advert for a position of part-time gardener with the respondent on 16 April 2007 and rang the respondent and arranged to go to the respondent for an interview later that day. When he arrived at the hotel he was kept waiting in reception and was then advised that no one was available to see him. He submits that he tried to arrange an interview for that evening or the next day but was again told that no one was available to see him. He left his name and telephone number and left the hotel.
2.2 The complainant submits that he was annoyed at the way he was treated so the next day he rang the respondent. He spoke to the General Manager who apologised to him and said that the manager he was due to see him the previous day (Ms A) would ring him back. Ms A rang him back and apologised but he said “I don’t need the job” and an interview for the position was not arranged. He told the respondent that he was going to take the matter further.
2.3 The complainant, who was in his mid-fifties, submits that someone from the respondent looked at him whilst he was waiting in reception, either directly or through CCTV, and considered him too old for the position of gardener. He therefore considers that he suffered discriminatory treatment because of his age.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies discrimination and submits that when the complainant rang about the vacancy Ms A arranged for him to come for an interview. When the complainant arrived the General Manager, who was to carry out the interview, was not available. The respondent accepts that no one from the hotel explained the situation to the complainant before he left. The respondent submits that the complainant did not leave a phone number to be contacted on.
3.2 The respondent submits that the following day the complainant rang to complain about what had happened and spoke to the General Manager, who was unaware of what had happened the previous day and apologised to the complainant when he told him what had happened. The General Manager arranged for Ms A to ring back the complainant and apologise. During this conversation she invited him to return for an interview. However, the respondent submits that the complainant was totally unreasonable, said the job was not important to him, refused the offer of an interview and threatened to put the respondent’s name in the paper.
3.3 The respondent submits that no assessment of the complainant took place whilst he was waiting in reception. The reception staff did not pass on information regarding the complainant to any member of management and there was no CCTV in reception that could be viewed directly by anyone other than the General Manager who was not in his office at the time and did not know the complainant was in the hotel.
3.4 The respondent denies discrimination and submits that the complainant has offered no evidence of discrimination on the age ground. They submit that they do not discriminate on age grounds and currently employ a 70 year old barman. They subsequently submitted CVs for the successful candidate for the part time gardener position who was in his fifties and one other candidate who was in his sixties.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant alleges discriminatory treatment on the ground of his age in relation to access to employment when he applied for the position of part-time gardener with the respondent.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.3 This complaint is made on the ground of age but, as held by the Labour Court in Anthony v Margetts¹: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
4.4 In this case there is a contradiction in some of the evidence adduced by the parties but it is clear that when the complainant went to the respondent’s hotel for an interview there were communication difficulties which meant that the interview did not take place and the complainant was annoyed at his treatment. The complainant rang the respondent the next day to complain about his treatment and received an apology. However, he also made it clear that he was not interested in the position of gardener.
4.5 The complainant considered that he was unfairly treated when he went to the respondent for an interview and it appears that communications from the respondent was poor. However, there is no evidence that might lead to an inference of discrimination on the age ground.
4.6 I have considered all of the evidence submitted and I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the age ground.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not discriminate against the complainant in relation to access to employment contrary to S.8(1)(a) of the Acts on the ground of age.
1 May 2009
¹Graham Anthony & Co v Mary Margetts, Labour Court ADE/03/1 – Det No. EDA038