The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-177
Crewlink Ireland Limited
(Represented by Aoife Carroll B.L. instructed by John F. Kelleher Solicitor)
File reference: EE/2011/539
Date of issue: 17 December 2013
HEADNOTES: Employment Equality Acts - Sections 6 and 8 – Marital Status, Family Status, Age & Race - Access to employment.
1.1 This dispute concerns a claim by Tunde Reisenleitner that she was discriminated against by Crewlink Ireland Limited on the grounds of marital status, family status, age and race contrary to section 6(2) of the Employment Equality Acts in relation to access to employment in terms of sections 8(1)(a) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 8 July 2011 under the Employment Equality Acts. On 11 September 2013, in accordance with his 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(1) of the Acts and as part of my investigation I proceeded to a hearing on 5 December 2013.
2. COMPLAINANT’S SUBMISSION
2.1 The complainant, who is Hungarian, submits that on 16 March 2011 she had an interview with the respondent for a cabin crew position. Initially she had a written English test which she passed. She then had a one-to-one interview which she claims only dealt with her nationality and her reasons for moving to Ireland, when she moved to Ireland and why she had finished her previous stewardess job. The complainant submits that when she said “because I got married” the interview was ended.
2.2 On the next working day she received an email stating she was unsuccessful. The complainant submits that she tried to contact the respondent for the reasons she was unsuccessful but got no response.
2.3 The complainant submits that the respondent took no notice of her previous work experience, qualifications, knowledge of languages or references. She also thinks that the other applicants on the day had less experience, qualifications and knowledge of languages.
3. RESPONDENT’S SUBMISSION
3.1 The respondent submits that they are a Cabin Crew Resourcing Agency who provide cabin crew to airlines across Europe. All the cabin crew are employed by Crewlink Ireland Limited.
3.2 The complainant applied to the respondent and was invited to an assessment day. If she had been successful she would been invited to attend a self-funded six week training course. If she had completed the training course satisfactorily she may have received an offer of employment.
3.3 The complainant attended the assessment day on 16 March 2011. She passed the written English assessment. Then she had a one-to-one interview and it was assessed that she “had a very strong accent. I found it difficult to understand her.” The respondent submits that she was unsuccessful at this stage because it was felt that her communication skills were not good enough and in particular she was difficult to understand.
3.4 The respondent submits they employ more than 2,400 people and have a multi-cultural staff, including many Hungarians, throughout Europe. They had no reason to ask the complainant her age. Also, her marital status and family status would not be relevant as they employ many people who are married and who have children.
3.5 They submit that their recruitment procedures comply with the Employment Equality Acts and their assessment process is based on ability and experience. The language abilities of the complainant are not relevant to the job she was being interviewed for as she would only be required to speak English. Also, references are only dealt with if someone passes the interview.
3.6 The respondent also submits that the complainant was not being interviewed for a job but being assessed as regards her suitability for a training course and therefore her complaint does not fall within the terms and meaning of section 8 (1) (a) of the Employment Equality Acts and I have no jurisdiction to investigate the complaint.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision is whether the complainant was discriminated against on the grounds of marital status, family status, age and race in relation to access to employment. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The respondent contends that the assessment day which the complainant attended does not fall into the category of “access to employment” within the meaning of the Employment Equality Acts as someone who is successful on the assessment day is not offered employment but a place on a self-funded training course.
4.3 Section 8 (5) states: “Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons,
where the circumstances in which both such persons or classes would be employed are not materially different.”
4.4 I accept that someone who was successful at the assessment day would not receive an offer of employment but an offer to go on a training course. However, if the person was then successful on the training course they could receive an offer of employment. My view is that the complainant was at the start of a process which could lead to an offer of employment. Like many recruitment processes there are a number of stages. At the start of the process the complainant applied to work for Crewlink Ireland Limited. She was invited to attend an assessment and was unsuccessful. I conclude that this claim falls within the category of access to employment and I do have the jurisdiction to investigate the claim.
4.5 Section 85A (1) of the Employment Equality Acts 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.
4.6 The complainant contends that she was asked a number of questions which led to the discrimination she alleges. She says she was asked her age and nationality. However, it is clear that she was required to bring her passport to the assessment day. This states her age and nationality and means there was no need for the interviewer to ask for this information. She also contends that when she was asked why she left a previous job as a member of cabin crew she told the interviewer that it was to get married and start a family. The respondent says this information was not sought by them but proffered by the complainant in response to a general question about the complainant’s previous work experience. They contend that many of their staff are married and have children and the interviewer would not have taken these factors into account.
4.7 The respondent says none of the factors that complainant alleges would have been taken into account in their decision. They contend that the assessment made by the interviewer was that the complainant’s spoken English was not good enough to be employed by them as a member of a cabin crew and that this is the reason why the complainant did not progress. The person who carried out the interview was not available to give direct evidence as they had left the respondent’s employment. The respondent did provide a copy of the written assessment which they stated was written at the time of the interview. The complainant asserted that this could have been written at any time but I have no reason to doubt that it was a contemporaneous document. The complainant asserts that her English was good enough to do the job and she had done the job before, albeit for a Hungarian airline.
4.8 I accept the respondent’s evidence that the complainant was assessed on the basis of criteria they set for the suitability of staff. It is clear that the complainant disagrees with their assessment.
4.8 However, this is a claim of discrimination made on the grounds of marital status, family status, age and race and, as held by the Labour Court in Graham Anthony v Mary Margetts, ADE/03/1 – Determination No. EDA038: “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.” Having thoroughly considered all the evidence adduced by the complainant I conclude that the complainant has failed to demonstrate any evidence that might give rise to an inference of discrimination on any of the cited grounds in relation to access to employment. I therefore find that the complainant has failed to establish a prima facie case of discrimination.
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.
17 December 2013