EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2012- 168
PARTIES
Nuala Kelly Bonner
and
John Conlon and Raymond Conlon t/a Conlon Travel Ltd.
(represented by Peninsula Business Services (Ireland) Ltd.)
File Reference: EE/2009/815
Date of Issue: 7th December, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(a), Gender - Section 8(1)(a), Access to Employment - Section 8(1)(b), conditions of employment - Section 74(2), victimisation - jurisdiction to consider victimisation while not claimed in complaint form
1. Dispute
1.1. This case concerns a complaint by Ms Nuala Kelly Bonner (hereinafter referred to as "the complainant"), that she was discriminated against by John Conlon (hereinafter referred to as "the first-named respondent") and Raymond Conlon (hereinafter referred to as "the second-named respondent") t/a Conlon Travel on the ground of gender, contrary to section 6(2)(a) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to access to employment, contrary to Section 8(1)(a) of the Acts, and promotion/regrading, contrary to Section 8(1)(d) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 9th November, 2009, alleging that the respondent had discriminated against her on the ground of gender.
2.2. Written submissions were received from both parties. On 17th February, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 15th June, 2012. Further information was sought from the parties and final correspondence in this respect was received on 12th September, 2012.
3. Summary of the Complainant's case
3.1. The complainant, who has a daughter, stated that she worked for the respondents as a coach driver on a casual basis since 2007. She outlined the kinds of work she did for them in that context and stated that they never raised an issue with her driving any particular category of passenger. She stated that she would normally get a call from them a couple of days before they wanted her to do a run, but it could be a day before or even the night before as well. She stated that she could not say how often she worked for the respondents but, when pushed, stated that it could be 20-30 times per year. She stated that she lived 38 miles from the respondents' base of operations, but that the respondent never raised an issue with this, at least prior to August, 2009.
3.2. The complainant stated that a full-time job with the respondent had become available in March, 2009 and was given to a man, Mr. A. She stated that she had not become aware of the existence of this position until after Mr. A had been hired but did not raise any concerns about the job being offered to him as she did not think there was anything she could do about it at that stage. She added that she did not want to "rock the boat" as she thought there might be a full-time job available later. She stated that this came to pass later when she heard that a previous driver who worked for it had been "sacked". She stated that she spoke with the first-named respondent about the matter on or around 20th August, 2009. She said that he did not make a comment but changed the conversation to something else.
3.3. The complainant stated that, on 7th September, 2009, she asked both respondents about this post. She stated that the first-named respondent "didn't say a pile" but the second-named respondent said that he had started a new man, Mr. B. She said that she responded that it was not really fair that she had not even been offered the job. She said that the second-named respondent told her that she lived too far away and had a child and they needed someone for school runs and "all sorts of work". She said that she told him that her distance from the base of operations was never a problem before and that she was available to take a full-time job.
3.4. The complainant stated that she spoke with the first-named respondent again on 15th October, 2010. She stated that she had a good relationship with him and phoned to ask again about the job and asked him why she did not get the job. She said that he reassured her that they could not send a woman on the school run concerned as the kids were a bit crazy and he needed a "fella" to keep them under control. She said that she told him that she had been doing all sorts of casual work with difficult passengers. She stated that she was really upset and shocked by this conversation.
3.5. The complainant submitted that her ex-husband, Mr. C, who also worked for the respondents, "would have got offered long days and a lot of coach work compared to what I got offered...he was always offered first priority of work". She stated that he would have been rung before her and she did not know why but thought that it was because he was a male. She also stated that the second-named respondent would always make sure she had her coach cleaned before going home whereas the first-named respondent never asked her to do that and her ex-husband was never asked by either respondent to do it.
Evidence of Mr. C
3.6. Mr. C stated that he had worked for the respondents since approximately 2006 and did weekend casual work for them. He stated that the notice he would receive for work varied but he could have been asked to go at two hours notice. He said that he had been offered the post in March 2009 but told the first-named respondent that he could not take it as he already had a full-time job during the week and was happy enough where he was with that. He stated that he was also aware of the post that became vacant in August, 2009 and had a conversation with the first-named respondent about taking that post.
3.7. Mr. C stated that he was present when she conversed with the respondents about the post that became available in August, 2009 (see pars. 3.2 and 3.3 above). He said that the complainant said that she was disappointed and annoyed that the post had been filled. He said that the second-named respondent said that she worked too far away and that they couldn't expect her to be able to control the children concerned.
3.8. Both Mr. C and the complainant denied disconnecting CCTV cameras on a bus as alleged by the respondent (par. 4.7 below) and denied letting anyone drink on that bus. He stated that wires had been pulled out from the camera as a result of bags being piled up against it. He said that he had looked to see could they be reconnected (he had some expertise in this area) but found that they could not.
Summary
3.9. The complainant stated that she earned approximately €80-100 each time she did a full day run and €40 for a half-day. She gave an account of her current financial circumstances. She stated that she last worked for the respondents in August 2009. She said that two men had been offered full-time jobs in the time she was there and she was never offered either position. She stated that she believed this was because of her gender and because she had a daughter.
4. Summary of the Respondent's case
4.1. The respondents stated that, at the time in question, they were sole traders operating under two different names and they have since amalgamated to Conlon Travel Ltd. The first-named respondent stated that he employed 5 or 6 casual drivers at the time in question. He stated that two of these were women: the complainant and another woman who did two or 3 runs in 2008 and none in 2009. He stated that he had heard about the complainant and Mr. C from a third party and had rung them to ask if they wanted to do some casual driving work. He said that neither she nor Mr. C ever did a "school run". He said that the complainant may have done the odd evening collection to bring the children home and would have done school tours. He gave an account of the differences between these types of work. In particular, he said that, on school tours, there would have been teachers on the bus (unlike on school runs).
4.2. The first-named respondent said that a post became available in March, 2009 as a previous driver had been dismissed. He said that Mr. A had previously driven for him, but had left to join another company. He said that he had since heard Mr. A was idle and he knew he was a "single man" and a "nice lad" and he was hired because he lived close to their place of business. He said that neither the complainant's gender nor her family status influenced his decision not to offer the post to her and stated that if she had lived closer he would have considered her for the post. He added that she never expressed an interest in the post in any event. He said that the post had been advertised but only in local shops.
4.3. With respect to the post that arose in August, 2009, the first-named respondent stated that he was not looking for a driver at the time. However, he said that, when Mr. B arrived into the yard looking for work and said he had passed the test, he knew him and that he was married with three children and lived a few minutes from the house. He said that he knew that Mr. B was prepared to work long hours and do long runs so he was hired. He added that Mr. B was also hired as he needed someone close by to carry out emergency work. He said that if he got a call in the morning to do a job, the complainant could not do it because she lived too far away.
4.4. The first-named respondent said that the complainant never directly asked him for a job. He said that he could not recall the conversation which she said took place on 20th August. He added that if she had asked him he would have told her that she could not do the job for which Mr. B was hired because it involved doing school runs. He said that he was not saying that a woman couldn't do that job and he would have sent a woman on other school buses. However, he said that he had respect for a woman and so he wouldn't send her to do that run as it involved driving 12-18 year old boys who were very unruly. He gave examples of same. He said that the complainant would not have been safe in that context. The second-named respondent added that the complainant could not have spoken with the first-named respondent on 20th August as she was in Liverpool that day.
4.5. The second-named respondent stated that he did not recall the conversation that the complainant said took place on 7th September. He added that there was no reason why he would be asked about school runs as he did not do school runs at the time. He also said that she never asked about any job. He stated that he did recall a conversation in which she told him that she could not do school runs. He recalled her saying that he had a new "fella" starting and he 'probably' said yes. He said that she said something like that she could not do the school run that he was hired to do as she lived too far away. He added that "money came up at this stage" at which point she said it wasn't viable for her to do the work. He outlined to the Tribunal why that was the case. He denied that he ever said anything to the complainant about her daughter or that the job would not be suitable for her because she had a daughter.
4.6. The first-named respondent stated that the complainant would mostly drive automatic buses and had specifically said she would not drive a particular bus. He said that he considered that both women and mothers were capable of carrying out all the duties and responsibilities of the posts in question. However, he said that some women wouldn't be capable of driving manual gearboxes, for example the complainant and his own daughter, although he said that it was "no problem" to the other female driver who worked for him.
4.7. The respondents stated that the complainant had not worked for them since 27th September, 2009 as they did not have work for her. They said that Mr. B was asking for all the work he could get and he had a family and children. The respondents also gave a detailed account of an incident where they say that Mr. C and the complainant disconnected CCTV cameras on a bus in order to allow the passengers they were taking drink on that bus. The respondents do not allow alcohol use on their buses.
4.8. The respondents also referred to a heated discussion with the complainant and Mr. C that took place sometime after this and gave accounts of this argument. The second-named respondent stated that he had a feeling after this argument that this would be the last time that the complainant would be driving the bus. He stated that these issues had not influenced the respondent's decision not to provide any more work to the complainant although his representative stated that it was her instructions from him before the hearing that he had done so. The second-named respondent also stated that, following the receipt of the complainant's claim to the Tribunal, he did not think that the complainant wanted to work for them anymore.
4.9. The respondents denied that Mr. C received better or more work than the complainant. They accepted that it may have been erroneous not to allocate work to her but it was not discriminatory.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts 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.'1
5.2. Section 6(1) of the Acts 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. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any two persons ..... that one is a man and the other is a woman". Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer.."
5.3. The issues for me to decide in this case, then, are whether the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the ground of gender and/or whether she was victimised by the respondent. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.4. It is clear that the respondents hired both Mr. A and Mr. B as permanent employees while the complainant was working for them. It is clear that Mr. A was hired because the respondent heard he was available and had worked with him before. With respect to Mr. B, it is clear that there was no job vacancy as such, but that the respondent offered a job to him when he called in and explained his personal circumstances and his experience. In that context, it is clear that the respondent took into account that Mr. B had children in offering him the job. As he had the same family status as the complainant, she cannot succeed on that ground with respect to his case. It is also evident that the respondent was inclined to provide work to those with children over those without. I am satisfied that the complainant's family status did not influence the respondents' decisions not to offered either post to her in that context.
5.5. The respondent stated that one of its female drivers was capable of driving every bus in its fleet. However, it stated that the complainant herself told it that she was capable of driving the larger buses. The complainant denied that she ever said that. Indeed, she denied that she was not capable of driving such buses. I prefer her evidence in that respect.
5.6. It was also crystal clear from his own evidence that the first-named respondent, at least, considered that, in general, women were not as capable of driving particular types buses as men, in particular large buses with manual gearboxes. I do not accept this. I am also satisfied that Mr. C was offered the post given to Mr. A. In that context, I do not accept the respondents' arguments that the distance the complainant had to travel to its base of operations was a factor in their decision not to offer the posts in question to her. In short, I am satisfied that, had the complainant been a man, she would have received greater consideration by the respondent for the posts in question. In that context, her gender was more than a trivial factor in the respondent's decision to offer those posts to Mr. A and Mr. B. She was clearly discriminated against on that basis.
5.7. In her initial complaint form, the complainant indicated that she was discriminated against with respect to both access to employment and promotion/re-grading. The narrative in the form outlined the facts of the case as already described. In so far as it is necessary to make a determination as to which category of discrimination is relevant in this case, I am satisfied that this is, in fact, a case of conditions of employment as the issue here is that the respondent failed to provide her with more hours of work.
Victimisation Issue
5.8. In Byrne -v- Association of Irish Racecourses2, the Equality Officer considered a case of victimisation even thought it had not been included in the submissions to the Tribunal. In doing so, he stated that he had a right "to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant's representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand"
5.9. In the present case, and similarly to Byrne, the complainant did not make a claim of victimisation prior to the hearing. However, it is clear that there is a question as to whether the respondent has an ongoing policy of refusing casual work to the complainant because she has taken a case to the Tribunal. I also note that the complainant is unrepresented. At the hearing, I put the respondents on notice that I was considering such a claim and provided them with an opportunity to make submissions in that respect, both at the hearing and in writing after the hearing had concluded. I am satisfied that, in all the circumstances of the present case and in light of the jurisprudence outlined in Byrne, I have jurisdiction to consider a claim of victimisation.
5.10. I am satisfied that the respondent has not provided the complainant with any work since she made her claim to the Tribunal. It is clear that the dispute over what happened on a bus trip she drove for the respondent was a factor in this decision (as per par. 4.7). However, I am satisfied that the fact that she had taken a complaint to the Tribunal was also a factor in this decision. As this need only be more than a trivial influence on the decision for a claim of victimisation to be made out, I find that the respondent victimised the complainant in that context.
5.11. In terms of the redress to be awarded in this case, for both the discrimination claim and the victimisation issue, it should be noted that there was a dispute about the complainant's earnings from the respondent. While the respondent provided some documentary evidence to support its submission in this respect, I found the evidence of the complainant to be more compelling in this respect and that she earned approximately €2,000 per annum in that context. The Acts require that I make separate orders for victimisation and for discrimination. In that context, my award for discrimination is the approximate equivalent of nine months salary and the award for victimisation is the approximate equivalent of twelve months salary. I also note that the respondents now trade as Conlon Travel and that the award I am making is against Conlon Travel in that context.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the respondents discriminated against the complainants on the gender ground pursuant to section 6(2)(a) of the Acts in terms of conditions of employment, contrary to s.8(1)(b) of the Acts.
6.3. I find that the respondents victimised the complainant in terms of Section 74(2) of the Acts.
6.4. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €1,500 in respect of the discrimination. This award is made to compensate the complainant for the distress caused to her as a result of the discrimination by the respondents. In that context, it is not in the nature of pay and is, therefore, not subject to tax.
6.5. Furthermore, pursuant to s. 82(5)(b) of the Acts, I order the respondent to pay the complainant interest at the Courts Act rate in respect of the amount referred to at paragraph 6.4 above in respect of the period beginning on 9th November, 2009 (being the date of the reference of the claim) and ending on the date of payment.
6.6. Additionally, pursuant to Section 79(1A) and in accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €2,000 in respect of the victimisation. This award is not in the nature of pay and is, therefore, not subject to tax.
_____________
Gary O'Doherty
Equality Officer
7th December, 2012
1 EE5/1986 Gibney v Dublin Corporation
2 DEC-E2008-008