The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-121
File reference: EE/2007/613
Date of issue: 6 July 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Age - Promotion/Re-grading
1.1 This dispute concerns a claim by Mr Tom Macken that he was discriminated against by Divillys Limited, on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts in relation to promotion/re-grading in terms of section 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 26 July 2007 under the Employment Equality Acts. On 30 November 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, 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 15 April 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started work for the respondent in November 2005 as a Relief Driver. Among his duties he covered for the Van Sales Drivers when they were absent. He submits that in May 2006 one of five Van Sales Drivers left and he covered for the vacancy for three months. When it was advertised he applied for the position but was turned down without an interview. When the new driver started the complainant trained him in. The new driver was fifteen years younger than the complainant.
2.2 In March 2007 another Van Sales Driver left and he applied for the position but was told that he was employed as a Relief Driver and again turned down without interview. Once again he trained in the new driver. In June 2007 the new driver left and he was replaced but this replacement left after four days. He was replaced two weeks later. The complainant covered during the vacancies and trained in the new drivers.
2.3 The complainant submits that he was discriminated against because of his age in not being appointed to any of the Van Sales Driver vacancies. He left to take up different employment in July 2007.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that any discriminatory treatment took place. The respondent submits that the complainant was employed as a Relief Driver on a flat wage and he worked in the factory if there was no driving work. This was very different to being employed as a van sales driver, who were expected to get new customers and increase sales and because of this they were paid commission on top of a flat rate wage.
3.2 The respondent submits that the complainant made an approach about two of the vacancies but they did not consider that he had the traits to be a good salesman and the complainant was advised of this. The respondent submits that when the complainant was covering for Van Sales Drivers there were no expansions in sales and during the months he covered from May to Aug 2006 the sales for that area dropped by €10,000 from the same period in the previous year. Also there were discrepancies in his stock which had to be corrected by the office staff. The respondent also received comments from one or two customers that he complainant told them how to run their business and they indicated that they would not be happy to deal with him on a permanent basis. The respondent submits that the complainant did not train the new drivers; he merely showed them the stops on the route, he introduced them to the purchasing managers and showed them the hand held equipment.
3.3 The respondent submits that all of the Van Sales Drivers appointed had sales experience and the one appointed in August 2006 had fifteen years sales experience.
3.4 The respondent submits that he would not discriminate on the grounds of age and he employs a number of staff who were of a similar age or older than the complainant.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant suffered discriminatory treatment on the grounds of his age in terms of promotion/re-grading. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
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. Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". In this claim the ground is 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."
4.3 The complainant contends that not being considered for the posts of Van Sales Drivers that became vacant whilst he worked for the respondent amounts to discrimination on the grounds of age as those appointed were younger. The respondent contends that the complainant was not suitable for these posts and his age was irrelevant. He had assessed the complainant's capabilities and he was happy with him in the role of Relief Driver but judged him not to be suitable to be a Van Sales Driver. The complainant had the opportunity to show his suitability when he covered for the Van Sales Drivers and particularly when he was covering for three months. During that period sales dropped from the previous year and in evidence the complainant said there was no incentive for him to try and improve sales as he was only on a flat rate and would have received no commission.
4.4 From the submissions given by both sides and the oral evidence presented at the hearing I conclude that there was no evidence from which it could be inferred that the decision not to interview the complainant for the positions of Van Sales Driver was because of the complainant's age 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 promotion/re-grading.
6 July 2010
¹ Graham Anthony & Co v Mary Margetts, Labour Court ADE/03/1 - Det No. EDA038