SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
A HEALTH BOARD
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Mr O'Neill
1. Appeal against Decision of the Director of Equality Investigations DEC-E2002-001.
2. This is an appeal by the complainant against an Equality Officer's Decision DEC-E2002-001 which found that the Health Board discriminated against the complainant contrary to Section 6(2)(g) of the Employment Equality Act, 1998, and contrary to provisions of Section 16 of the Act by its failure to do all that was reasonable to accommodate the needs of a person with a disability by providing special facilities at the interview stage.
The appellant attended for interview at a Hospital on the 6th of July, 2000, for the position of Senior Pharmaceutical Technician. She was unsuccessful at interview. The appellant is claiming that the marks awarded were unjust and unfair. She alleges that she was discriminated against in relation to the interview facilities and the selection process for appointment on the basis of her disability.
The Equality Officer found that the Health Board had not discriminated against the complainant contrary to the provisions of Section 8 of the Act in relation to the selection process for the post of Senior Pharmaceutical Technician.
She appealed to the Labour Court in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 12th of June, 2002.
The appellant appealed the decision on the following grounds:-
1. The compensation awarded was insufficient given the distress suffered and given the size of the Health Board.
2. The marking system and marks awarded were grossly unjust and did not reflect her skills and abilities.
3. Her application for any position in Pharmacy was not properly considered.
The respondent accepts the findings of the Equality Officer, apologises for the distress caused by the inappropriate facilities provided when the appellant had experienced difficulties in gaining access to the building where the interview was being held and for conditions in the interview room which was provided as a replacement for the inaccessible one.
The Equality Officer found that the respondent discriminated against the complainant in terms of Section 6(2) of the Employment Equality Act, 1998, and contrary to Section 16 of the Act, by its failure to accommodate the needs of a person with a disability by providing facilities at the interview stage. In accordance with Section 82 of the Act, she was awarded €1,270 as compensation for the distress suffered.
A commitment was given by the respondents to rectify the situation and to fully comply with the decision of the Equality Officer. The Board undertook to provide and maintain an effective means of access to the Administrative Building, and to improve its policies on equality and the employment of people with disabilities, in accordance with the Equality Officer's decision.
The appellant appealed the findings of the Equality Officer claiming that the compensation for the distress caused was insufficient
At the Court hearing, the appellant accepted the Equality Officer's findings that she had not established a prima facie case of discrimination on the disability grounds in relation to the selection process for the post of Senior Pharmaceutical Technician, as she admits that she was not as qualified as the two candidates selected for the panel and had not had the required hospital experience.
The appellant stated to the Court that she was not claiming that she should have been selected for the position. However, as the two persons on the panel declined the offer of the position; she maintained that consequently she should have been offered the post of Senior Pharmaceutical Technician, but that due to her disability she was not.
The appellant contends that the "demeanour" of the interview board was such that she felt she had been discriminated against on the grounds of her disability. She is of the view that the marks awarded by the interview board were grossly unjust and did not reflect her skills and abilities.
Other positions in Pharmacy
The advertisement for the post of Senior Pharmaceutical Technician stated:
"Pharmaceutical Technicians with less than 3 years experience or no hospital experience are invited to enquire about temporary positions."
In completing her application form she indicated that she wished to be considered for any position in Pharmacy within the Hospital.
The application form was specifically for the post of Senior Pharmaceutical Technician. The appellant modified the form to show her interest in other positions. The interview board carried out the interview for the Senior Pharmaceutical Technician position and made no reference to any other positions.
The hospital stated that if suitable candidates emerged from this interview process that they might be considered for possible future temporary positions, but that no such positions were available at the time.
The Equality Officer's findings in respect of the contravention of Section 6(2)(g) of the Employment Equality Act, 1998, and contrary to Section 16 of the Act, are not in dispute between the parties, the amount awarded as compensation has been appealed. The Court having examined the evidence concurs with the amount awarded as compensation.
The appellant does not dispute the findings of the Equality Officer at 5.23.
"I have found that the successful candidate was better qualified and had greater hospital experience than the complainant."
and the findings that:
"the complainant has failed to establish a prima facie case of discrimination on the disability grounds in relation to the selection process for the post of Senior Pharmaceutical Technician."
However, the appellant contends that the interview board had discriminated against her contrary to the provisions of Section 8 of the Act in relation to the selection process for the post of Senior Pharmaceutical Technician. No factual evidence was presented to the Court to substantiate this contention other than the appellant's perception of the "demeanour" of the interview board.
The Court accepts and understands that the appellant was upset by the experiences she encountered prior to the interview; however, there is no indication to suggest that the interview board took the appellant's disability into account during the selection process. The appeal on this ground is dismissed.
Failure to Offer Another Position
The applicant's final ground of appeal was that her application for any position in Pharmacy was not properly considered. While the Equality Officer refers to this matter at 5.20, she makes no findings/decision on this issue.
The Court is satisfied that while the advertisement makes reference to the possibility of temporary positions, the appellant has not established any grounds to suggest that her disability was considered as a factor why she was not advised of such positions. While noting that the hospital failed to correspond with the appellant on this point, the Court is satisfied that there has been no breach of the Act.
The Court concurs with all the findings of the Equality Officer. The Court is satisfied that the compensation awarded is appropriate and, therefore, the appellant's appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
26th June, 2002______________________
Enquiries concerning this Determination should be addressed to Caroline Hayes, Court Secretary.