The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-062
An Employer (in liquidation)
(Represented by McCann FitzGerald Solicitors)
File reference: EE/2013/254
Date of issue: 31 July 2015
HEADNOTES: Employment Equality Acts Sections 6, 8 Gender and Age – Promotion and Victimisation
1.1. This dispute concerns a claim by Ms. A, the Complainant, that she was discriminated against by Employer X on the grounds of gender and age contrary to section 6 of the Employment Equality Acts, was discriminated against in terms of promotion and that she suffered victimisation in accordance with section 74 (2) of the Employment Equality Acts.
1.2. The Complainant referred her claim to the Director of the Equality Tribunal on the 28th May 2013. On the 8th July 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, 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 the 14th July 2105.
2. COMPLAINANT'S SUBMISSION
2.1. The Complainant stated that on the 9th of January 2013 a vacancy notice for Departmental Supervisor in the Readymade Curtains Department was advertised with a closing date of 11th January 2013. The place of work was a large Dublin Department Store.
2.2. The Complainant applied on the 21st January. Mr. SR from the HR Department approached the Complainant to confirm if she still wished to go ahead with the interview as the position involved weekend working.
She confirmed that she wished to go ahead. Two days later Mr.SR again asked the Complainant to confirm that she wished to proceed. She indicated that she did and a time of 2.30pm that afternoon was agreed.
2.3 The interview board consisted on Mr.SR from HR and Mr.SD a Retail Manager/Buyer. The initial discussion concerned the Curtain Department and ideas for its future development. The Complainant queried the rate of pay and it was confirmed that it was based on experience. The Complainant pointed out that she had effectively been running the Department since May 2011 when the former Manager had retired. Both panel members agreed that the Complainant had done a good job and the Complainant mentioned favourable e-mails from customers.
Mr.SR then mentioned Flexibility. The Complainant stated that as she lived in Clara, Co. Offaly she could only work Monday to Friday 08.30 to 18:00. Mr.SR acknowledged that the Complainant looked after her mother at home. The Complainant pointed out that this was a factor in her only being available Monday to Friday.
2.4 Two other candidates applied, both young men in their twenties. They were on six hour and twenty two and a half hour contracts respectively. The Complainant had a thirty seven and a half hour contract, was fifty two years of age and the only female applicant.
2.5. The successful male candidate was interviewed before lunch and then had lunch with Mr.SR. He and Mr.SR were regular lunch time companions and were regarded as good friends.
On the 4th February the Complainant was informed that she was unsuccessful on the grounds of lacking flexibility.
2.6 The Complainant then mentioned other female employees with long service, some with Curtain experience who were not considered for redeployment into the Curtain Department. The Blanchardstown store of the Group was closing with staff redundancies and this was a source of possible redeployments. The gender balance of Managerial Staff was outlined.
The Complainant queried the scoring system used at the interview and how points were awarded. She alleged that the training, appointment and selection of recruitment /promotional panels appeared to be very weak in the Respondent organisation.
She concluded by a number of points regarding the difficulties experienced by older females in securing promotions in business generally.
2.7 A further supplemental submission by the Complainant was made on the day of the hearing – the employment had, in the interim period from the submission of the initial submission, gone into liquidation. However the supplemental submission mostly amplified the issues raised in the initial submission together with a number of references to issues before the Labour Relations Commission. After consideration in private the Respondent agreed to have the supplemental submission considered at the hearing.
3. RESPONDENT'S SUBMISSION
Opening issue / Liquidation of Employer / Change of Representative & Respondent.
The Respondent before the Tribunal was the Liquidator – the original employer having gone into liquidation shortly prior to the hearing. Allowing for the knowledge disadvantage this placed the Representative of the Liquidator, it was accepted as far as possible, in order to facilitate the hearing proceeding, to refer to the comprehensive submission prepared by the previous Representative - IBEC.
The Tribunal, bearing in mind the legitimate difficulties of the new Representative, requested by agreement that proceedings focus on the disputed Promotion & Interview process - the key central element of the claim.
It was accepted that the IBEC submission for the previous Respondent could be relied upon as a resource by the new Representative but it might be necessary to allow breaks for consultations with the original authors.
A request for some additional information, if possible, in relation to Interview records was made by the Equality Officer. Research was carried out by the Liquidator’s representatives but it was confirmed by letter of the 23rd July 2015 that all relevant evidence had been included in the original IBEC submission.
3.1 The IBEC submission outlined the background to the Equality claim and to it’s inter connection with other claims before related Agencies in the Labour Relations arena.
The Complainant began working with the first Respondent in 2001 having previously been with a supplier. Her career had been largely in the Curtains area. She had a 5 over/6 Contract for 37.5 hours – meaning she was available to work Monday to Saturday as required.
3.2. In 2007 the Complainant moved home address to Co. Offaly and requested a changed work roster, of 24 hours duration, as a consequence. In particular she would not be available to work Saturday. The Respondent agreed to this change at that time.
In 2008 the financial position of the Respondent business deteriorated. However in 2009 the Complainant request a return to “Contract Hours” and the Respondent allowed her to revert to a 30 hour contract. - in contrast to other staff being requested to reduce their hours.
3.3. The Curtains Department Supervisor position was a promotional position and the Respondent employer is entirely free to determine the requirements of the role. Rostered Saturday and periodic Sunday attendance, in the current retail climate, were reasonable requirements.
The Complainant could have adjusted her personal circumstances to facilitate her application. The requirements asked for were not specifically designed to negate the opportunities of the Complainant.
3.4 Allowing for differences in some minor details the facts of the actual interview were similar in both submissions. The Respondent pointed out that Saturday availability was a key factor in retailbusiness. The interview panel raised this matter with the Complainant under the heading of “Flexibility”. The Complainant did not change from her position of limited availability.
3.5 The gender and age of the other two applicants was not an issue as the positon was advertised openly and all staff could apply. The Respondent had a neutral stance on the gender or age of applicants.
The issue raised by the Complainant of the general gender balance with the Company had no relevance to the applications for and the ultimate selection outcome of a promotional vacancy.
The sharing of a lunch time meal with Mr.SR, a member of the Interview Board, was being taken out of context. The lunch took place in the Staff Canteen where all staff mix regularly without any restriction. Any implication that the sharing of lunch with Mr. R had a suggestion of impropriety regarding the Interview process was completely denied.
The issue of the overall gender balance of the Staff was being used selectively in relation to a sub set /one Floor of the organisation. The overall gender balance of supervisors and Managers across the entire city Centre store was close to 50/50 male /female. Statistics were provided in support.
In addition three other vacancies in recent times, following an interview /selection panel, were filled by female applicants. Details were given in support.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision, having reviewed all the written and oral evidence presented, is whether or not the Complainant Ms. A was subjected to discriminatory treatment in relation to the Curtain Department Supervisor position on grounds of Gender and Age and had been subject to Discrimination/Victimisation as far back as 2007.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”
4.4 Having regard to the foregoing, and on the balance of probabilities, I am satisfied that the parties were aware that the key issue in the Promotion element of the claim was in regard to Ms. A’s availability for work at weekends /Saturdays and on occasion Sundays.
The Complainant’s letter of application, dated the 10th January 2013, stated
“I am available to work from 8.30 am to 5.pm Monday to Fridays.”
The flexibility issue was raised at interview and was fully understood by all partiesin the context of a major retail store, with significant trading issues, in Dublin city Centre. The interview notes were available as part of the Respondent’s initial IBEC submission.
Common understanding of trading conditions in Dublin City Centre over recent years clearly point to weekend availability from staff, particularly in a Supervisory Retail position in a major Department Store, now being a fact of life for employees and employers.
Ms. A. was not able to satisfy this requirement. She had chosen to relocate to Co. Offaly some years previously and must have been aware that this geographic relocation would have consequences in relation to flexibility in terms of possible future employer requirements and or business changes. She had been facilitated by the Respondent with altered hours albeit in a time when the trading situation of the Respondent was much better and general weekend working by major Department stores was not as prevalent as at the time of the Complaint. However as other colleagues had agreed to significant changes in their conditions and hours arising from the very difficult trading situation of the Store in the interim period it could not have come as a surprise to her that her weekend non availability position would come under review.
4.5 The letter of regret from the Respondent stated clearly
“While we recognise your experience and extended knowledge of the business, the position required a high degree of flexibility that you indicated that you cannot guarantee at this time”.
4.6 A consideration in this case has to be whether or or not the “Flexibility” requirement - in this case essentially availability for weekend working was “Indirectly Discriminatory”. The Complainant referred to a “Culture of discrimination”“Stereotypical attitudes about women and women’s abilities” as being the culture of the Respondent organization.
Statistics provided by the Respondent, in the original IBEC submission, indicted that the Respondent organisation had a normal, approaching 50/50, age and gender profile for a long established business. The appointments from other recent competitions of female applicants did not point to any established bias against that gender.
4.7. The Labour Court has considered the issue around “Indirect Discrimination” in Department of Justice, Equality and Law Reform v The Civil Service Public and Services Union (EDA0713). A pertinent question was how to consider “Objective Justification” for a defence against a claim of Indirect Discrimination. The Court referred to a test in these types of cases as set out in a UK case in Barton v Investec Henderson Crosthwaite Securities Ltd  IRLR 332.
The test quoted by the Labour Court from the above case was as set out as below
(1) that there were objective reasons for the difference;
(2) unrelated to sex;
(3) corresponding to a real need on the part of the undertaking;
(4) appropriate to achieving the objective pursued;
(5) it was necessary to that end;
(6) that the difference conformed to the principle of proportionality;
(7) that was the case throughout the period during which the differential existed.
The Court also held in Inoue v NBK Designs Ltd (2003) ELR98 that reasons advanced in these circumstances must be cogent and specific to the case.
4.8 Taking the criteria outlined above by the Labour Court, by reference to the UK case cited, the need for Flexibility and availability for some weekend working in a Supervisory position as in the case at hand, has to be considered by a reasonable person as “Corresponding to a real need on the part of the undertaking” and “necessary and appropriate to the circumstances”.
Common understanding of the Retail environment affecting large Department Stores in the Dublin City Centre indicates that some Supervisor availability at weekends is now a basic minimum requirement.
Accordingly the selection of one of the other two applicants who had more flexibility in relation to weekends could not be seen to be discriminatory against the Complainant in terms of the Promotion element of the Claim.
4.9 In relation to the general claim of Discrimination I could not find any substantial grounds to establish a Prima Facie case of discrimination. The actions of the Respondent is facilitating the changes in hours of the Complainant were positive indicators of the good standing of the Complainant with the Respondent.
The selection and training of the interview Board, as raised by the Complainant, was adequate for the nature and size of the Business, a full time experienced HR person and a senior Manager. Notes were taken and records kept.
The general Staff statistics provided indicated a mature business of long standing with no obvious gender or age biases.
4.10 The adduced no evidence to support her claim of victimsation.
5.1 I find that the Complainant was not discriminated against on grounds of age or gender in relation to the Promotion element and there was no Prima Facie case of general discrimination or victimisation established.
31st July 2015