EDA1011

Introduction

This is an appeal by the Worker against the decision of the Equality Tribunal in his claim of discrimination on the disability ground against the Health Service Executive. The claim is taken pursuant to the terms of the Employment Equality Acts 1998-2008 (the Act).

In accordance with the normal practice of the Court the parties are referred to as they were at first instance. Hence the Worker is referred to as the Complainant and the Health Service Executive is referred to as the Respondent.


Background

The Complainant suffers from a disability within the meaning ascribed to that term by the Act. He brought complaints against the Respondent before the Equality Tribunal under a number of headings, namely: -

(a) Harassment on Grounds of disability;

• Harassment on grounds of Disability
  The Equality Officer found that the matters complained of as constituting harassment had all occurred on dates prior to May 2004 when the Respondent completed an investigation into these complaints. The Equality Tribunal received the complaint on 28th June 2008.
  
  On that basis the Equality Officer held that the complaint was submitted outside the time limit prescribed by s. 77(5) of the Act, in consequence of which he had no jurisdiction to entertain the complaint.
  • Discriminatory Dismissal
    The dismissal giving rise to this aspect of the complaint was the subject of proceedings before the Employment Appeals Tribunal under the Unfair Dismissals Acts 1977-2007. In consequence the Equality Officer held that by operation of s.101(4)(c) of the Act the Complainant was estopped from claim redress under the Act.
    

    Discrimination and Victimisation in Relation to Promotion
    The Equality Officer found that the Complainant had not been discriminated against in relation to the disputed promotion. The Equality Officer further found that no evidence had been adduced to support the complaint of victimisation.

Position of the Parties

At the opening of the appeal the representative of the Complainant told the Court that they were only proceeding with the claims in relation to the alleged discrimination in the filling of the promotional post and in relation to victimisation. However it was acknowledged that there was no evidence to support the victimisation claim. Accordingly the Court proceeded to consider the appeal on the basis that it was confined to the findings in relation to discriminatory treatment in the filling of the promotional post.

The Complainant case is that he applied for the promotional post of Maintenance Foreman at Lettekenny General Hospital. He contends that he met the stipulated requirements for the post in that he held sheet metal welding qualification and had in excess of 15 years relevant work experience. He was not called for interview. The Complainant believes that the failure to call him for interview was because of his disability.

The Respondent denied that the Complainant was discriminated against in relation to the promotion in issue. The Court was told that the minimum requirements for the post were that candidates must have completed a recognised apprenticeship or technical training together with five years post qualification work experience. It is the Respondent’s case that the Complainant did not provide evidence that he held the stipulated minimum qualifications for the post. Furthermore, it was submitted, he did not have the necessary post qualification work experience required.

Material facts

Based on the evidence tendered the material facts of the case can be summarised as follows: -

• • The Complainant was employed by the Respondent on a rehabilitation training and support programme between September 1999 and February 2001. On or about 5th February 2001 the Complainant commenced an Electrical Apprenticeship programme.
    
    The Complainant failed to pass all modules of the apprenticeship training programme, in consequence of which his apprenticeship was terminated by the Respondent in or about April 2004. In May 2004 the Complainant’s employment with the Respondent was terminated.
    
    In June 2005 the Complainant was reengaged by the Respondent with a view to completing his apprenticeship. However the Complainant failed to complete his apprenticeship.
    
    While still employed by way of apprenticeship the Complainant applied for the advertised post of Maintenance Officer / Foreman. The qualification required for the post included having completed a recognised apprenticeship or a technical training programme and five years post qualification experience.
    
    In his application the Complainant listed four courses in welding and metal fabrication which he completed while living in Australia. In assessing the Complainant’s application the Respondent took the view that the completion of these courses did not correspond to the stipulated qualifications. The Respondent also took account of the fact that at the time of his application the Complainant was still employed by way of apprenticeship and so did not meet the work experience requirements of the post.
    
    Following the initial decision of the Respondent to reject his qualifications, the Complainant communicated with the Respondent to claim that those qualifications were equivalent to those stipulated. The Respondent made further enquiries as to the standing of the proffered qualifications as a result of which it did not alter the original decision.

Conclusions of the Court

Section 85A of the Act, as amended by the Equality Act 2004, provides, in effect, that it is for the Complainant to prove facts from which it may be presumed that he suffered unlawful discrimination. It is only if such facts are proved that the onus of establishing the absence of discrimination shifts to the Respondent. If the Complainant fails to prove these primary facts his claim cannot succeed. The test for establishing if the probative burden has shifted in that formulated by this Court inMitchell v Southern Health Board[2001] ELR 201. In that regard the mere fact that a persons without a disability were afforded an interview for the disputed post and the Complainant was not, is insufficient, without more, to shift the probative burden.

It is clear that the Complainant did not meet the stipulated requirements for the post for which he applied. The essence of his case is that the Respondent should have been prepared to accept the alternative qualification which he did possess.

It is not for the Court to substitute its views for those of the employer in deciding the qualifications necessary for a particular post. As this Court pointed out in Determination EDA077-O’Halloran v Galway City Partnershipthe qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate isclearly better qualified against the chosen criteria that an inference of discrimination could arise.

In this case the Respondent stipulated specific qualification which candidates were expected to possess in order to compete for the post. It is clear that the Complainant did not have the qualification specified nor did he have the requisite post qualification experience. The Court is satisfied that the Respondent was entitled to conclude that the alternative qualifications proffered by the Complainant were not equivalent to those stipulated. The Court is further satisfied that the Respondent’s conclusion in that behalf wasbona fideand was not tainted by discrimination.

In all the circumstances the Court is satisfied that the Complainant has not established facts from which discrimination can be inferred. Accordingly the claim cannot succeed.

Determination

For all of the reasons set out above the Court is satisfied that the decision of the Equality Tribunal is correct in law and is supported by the evidence. Accordingly the appeal is disallowed and the decision of the Equality Tribunal is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
1st September, 2010______________________
JMcCChairman



NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.