Equality Officer's Decision
(represented by Gary O'Mahoney, Irish Business and Employers Confederation)
File reference: EE/2008/326
Date of issue: 15th July 2011
Keywords: Employment Equality Acts, Race, Access to Employment.
1.1 This dispute concerns a complaint by Vytautas Jurksa, a Lithuanian National, against Earlsfort Centre Hotels Proprietor Ltd trading as the Conrad Hotel. The complainant alleges that he was discriminated against on the grounds of race in relation to access to employment contrary to the Employment Equality Acts 1998-2008 [hereinafter referred to as the 'Acts']. He withdrew the claim of victimisation at the hearing.
1.2 The complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 23rd May 2008. In accordance with his powers under Section 75 of that Act, the Director delegated the case on 15th November 2010 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 hearing was held on 7th July 2011.
Summary of the complainant's case
2.1 Mr Jurksa applied for a vacancy for a laundry assistant with the respondent on 22nd November 2007. He submits that he applied for it because he had over three years experience of working in hotels in Ireland. He was invited for interview on 27th November.
2.2 He submits the interview went well. The laundry manager, Ms A showed him the laundry room and that he answered all questions she asked satisfactorily. He said that he was flexible regarding hours and could work over Christmas. Ms A asked for and he gave a list of referees. At the end of the interview, Ms A asked him whether he had any questions. Mr Jurksa asked when he would find out if he was successful, and he submits that she told him he would find out at the end of the week.
2.3 He submits he was surprised when he received a letter the following day (Wednesday) informing him that he was not successful.
2.4 Mr Jurksa maintains that the only possible reason that he did not obtain the position was because he was from Eastern Europe as he had sufficient experience and knowledge for the position.
Summary of respondent's case
3.1 The respondent denies any discrimination. 69% of the hotel's staff are not Irish. It submits that it was shortlisted in 2006 and 2008 for the Irish Hotels Federation Diversity Award. At the time of Mr Jurksa's interview, there were twelve employees working in the Laundry Department. Of them, four were from Eastern Europe. The respondent submitted Ms A's interview notes for Mr Jurksa and the successful candidates. The respondent maintains that Mr Jurksa said he did not like touching dirty things in his interview. According to the respondent, this is the reason Mr Jurksa did not obtain the position. The successful candidates were Nigerian and Slovakian.
Conclusions of the Equality Officer
The issue for me to decide is whether or not Mr Jurksa was discriminated on the grounds of race in terms of Section 6(2)(h), of the Acts by the Conrad Hotel 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 he can rely in asserting that he 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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
4.3 No convincing evidence was presented to me that would lead me to believe that the recruitment process was tainted by discrimination. While the two people recruited by the Conrad hotel were not Lithuanian, this is, in itself, insufficient to shift the probative burden. It is clear from the interview notes to an independent observer that they performed better than the complainant at interview. I accept the respondent's contention that somebody who had an aversion to dirty things might not be suited to the role of laundry assistant. Therefore the complainant has failed to establish a prima facie case of discrimination regarding access to employment
I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that the complainant was not discriminated on the ground of race regarding access to employment contrary to 8 (1)(c) of the Acts.
Therefore, Mr Jurksa's complaint fails.