THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-033
(represented by David Lane, Services, Industrial, Professional and Technical Union)
File reference: EE/2006/314
Date of issue: 19th March 2010
Keywords: Employment Equality Act, Gender, Discriminatory treatment, Access to Employment, Discriminatory reference
1.1. The case concerns a claim by Ms Aisling Hayes that Autoboland Ltd. discriminated against her on the grounds of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 -2008 [hereinafter referred to as 'the Acts'] regarding access to employment.
1.2. The complainant referred a complaint under the Act to the Director of the Equality Tribunal on the 4th September 2006. On 13th November 2008, in accordance with her powers under Section 75 of the Act, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 15th May 2009 as required by Section 79(1) of the Act. The last piece of correspondence relating to the complaint was received on 20th August 2009.
Summary of the complainant's case
2.1 The complainant states that she saw a position for Junior and Senior Sales Executives as well as a receptionist position with the respondent advertised in The Munster Express on 12th July 2006. On 14th July 2006, Mr. A, a recruitment consultant, whom she assumed worked for the respondent telephoned her to invite her for interview the following day.
2.2 Ms Hayes attended this interview with Mr. A at Autoboland's premises. According to the complainant, after the initial small talk Mr A. explained the duties involved in the receptionist role. The complainant pointed out that it was the sales position that she was interested in as she had 12 months advertising sales experience. Ms Hayes submits that Mr. A appeared stunned that she applied for the sales position. According to her he went on to say that AutoBoland Ltd. would be writing to the complainant to say that they were not considering her for this position. According to the complainant, she asked why she was deemed unsuitable. Ms. Hayes maintains that Mr. A said in response, 'We don't employ women as salespeople. It just doesn't work.' She submits Mr. A went on to say said that a woman worked previously with them as a car salesperson but was not good as she did not follow through on paperwork and she left of her own accord. Ms. Hayes maintains that Mr. A also said that 'women selling cars was like men selling lingerie'. The complainant submits that she asked to be interviewed for the Car Sales Executive. She maintains that Mr. A said that those interviews would be held separately and that he would talk to Mr B, the Managing Director of Autoboland Ltd, about the candidates.
2.3 A few weeks later (26th July 2006), the complainant received a letter from Autoboland Ltd saying that she had not been successful in either competition. A couple of days after the receipt of this letter she telephoned Mr A for feedback on her interview and asked was it because of her gender that she did not obtain the position. In this conversation the complainant submits he said it was because of her lack of experience but went on to say 'As I was explaining for whatever reason in Ireland female salespeople in the motor trade are few and far between'. Subsequent to this, both the receptionist and sales positions were advertised 5 times over the next couple of months in the Munster Express.
Summary of the respondent's case
3.1 Mr A was contracted by AutoBoland Ltd to fulfil the recruitment needs of the company from January 2003 to September 2006. This was a time of expansion for Autoboland which is why Mr A was contracted to fulfill this role. The respondents accepts that Autoboland Ltd is vicariously liable for the actions of Mr A within the meaning of Section 15 of the Acts. During this time, he was responsible for placing the necessary advertisements, shortlisting candidates and carrying out first-round interviews. From June 2006 to October 2006, the positions of Junior Sales Executive, Senior Sale Executive and Receptionist were advertised as the respondent was recruiting for more than one dealership.
3.2 Ms Hayes was called for what, the respondent submits, was a screening interview on 15th July 2006. It was held at the AutoBoland premises and only Mr A and the complainant were present. In a written statement, Mr A said that as far as he was concerned the interview was for the position of Receptionist as that is the role which, in his opinion, matched her skillset. As the interview progressed, Ms Hayes made it clear that she was not interested in the administrative position. Mr A said that he would discuss her application for the Sales position with Mr. B, the Managing Director, who was on holidays at the time.
3.3 The respondent accepts Ms Hayes was not called for interview for the Sales position which was not filled until the end of September 2006. The respondent submits the Curriculum Vitae of the person who filled the sales position. This person had two years experience of car sales with a Peugeot dealership in the UK. Ms Hayes had no car sales experience. She was invited to an interview for a sales position at AutoBoland's BMW dealership in August. As she attended this interview, the respondent does not accept that Ms Hayes was denied access to employment because of her gender.
3.4 Autoboland Ltd maintains that women have been employed specifically as Car Sales Executives and submits written evidence of same. They maintain that their recruitment policy is that they employ the most suitable person for the role based on qualifications and experience. The respondent submits written evidence of three women employed in sales roles employed by them at the time of the Hearing.
Conclusions of the Equality Officer
4.1. The issue for me to decide is whether or not Ms Hayes was discriminated on the grounds of gender in terms of Section 6(2)(a) of the Acts by AutoBoland Ltd in relation to access to employment contrary to Section 8 (1) (a) of the Acts. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus sifts to the respondent to rebut the inference of discrimination raised.
4.3 There are two strands to be decided on in this case:
(i) whether or not Mr A made discriminatory references in the screening interview
(ii) whether or not the competition for Junior Sales Executive with AutoBoland Ltd was tainted with unlawful discrimination i.e. because Ms Hayes was a woman she was not appointed to this position
4.4 Regarding (i) it is common case that the respondent is vicariously liable for the actions of Mr A pursuant to Section 15 of the Acts. In the screening interview, the complainant claims that Mr A said that 'We don't employ women as salespeople. It just doesn't work' and 'Women selling cars was like men selling lingerie'. The respondent did not call Mr A as a witness because of his deteriorating health. Autoboland Ltd submits that they wish they could have brought him to the Hearing as they believe it would bolster their case but it would have put him under undue stress. Therefore, the respondent is unable to rebut the complainant's (whose evidence I found to be generally credible) recollection of events. It would appear that Mr A made presumptions about women's ability to sell cars. On the balance of probabilities, I am satisfied that Mr A did make a gender-discriminatory reference. Therefore the complainant has established a prima facie case of discriminatory treatment and the respondent has failed to rebut it.
4.5 Turning to (ii), I will now look at whether the discriminatory remarks had an adverse impact on the complainant obtaining the position of Junior Sales Executive. The respondent supplied written evidence of women employed as Car Sales Executives as well as Finance Sales Executives. AutoBoland Ltd also submitted the Curriculum Vitae of the person who obtained the position in September 2006. The Curriculum Vitae outlined that he had two years experience of car sales. Ms Hayes had no experience of car sales. Therefore, I do not find convincing evidence that would lead an independent observer to conclude the complainant was manifestly as qualified as the candidate that obtained the position. Mr A was only involved in the shortlisting process. It is also noteworthy that Ms Hayes was interviewed for a Junior Car Sales Executive at an other garage which was part of the AutoBoland group. This interview took place subsequent to her interview on July 15th with Mr A but prior to her lodging the complaint with the Equality Tribunal. The complainant did not obtain the position but again the successful candidate had experience of car sales. I am satisfied that the complainant has not established a prima facie case that she was denied access to employment by AutoBoland Ltd on the grounds of gender.
I have concluded my investigation of Ms Aisling Hayes's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) AutoBoland Ltd discriminated against Ms Hayes when discriminatory comments were made to her by an agent of the respondent during an interview
(ii) the complainant has failed to establish the facts from which it may be presumed that she would have obtained the position but for the discriminatory comments and therefore was not denied access to employment on the ground of gender
In accordance with Section 82 of the Acts, I order the respondent pays the complainant €500 in compensation for the effects of the act of discrimination.
19th March 2010