O'Sullivan AND Department of Justice, Equality and Law Reform, Dublin (Represented by Eileen Barrington BL, instructed by the Chief State Solicitor)
1.1 This dispute concerns a claim by Mr Donal O'Sullivan that he was discriminated against by the Department of Justice, Equality and Law Reform on the ground of disability contrary to the provisions of the Employment Equality Act 1998 when the Department failed to re-schedule a promotional interview held while he was undergoing surgery.
1.2 The complainant referred a claim to the Director of Equality Investigations on 13 August 2002 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 4 April 2003 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 26 February 2004. Subsequent correspondence with the parties concluded on 21 April 2004.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed by the Department of Justice, Equality and Law Reform as a Senior Probation and Welfare Officer. In 1997 he was diagnosed as having ulcerative colitis, an inflammatory bowel disease affecting the innermost layer of the large intestine. He was treated with medication for some years, but the condition continued to deteriorate. Eventually surgery was decided upon, and he was given a hospital admission date for October 2001. This had to be postponed to early 2002, but the complainant was not given a definite admission date because of waiting lists. The complainant's condition worsened and at the beginning of March 2002 he was advised that the operation would be carried out the following week.
2.2 In February 2002, while the complainant was awaiting definite news of his surgery, the respondent advertised a competition for promotion to Assistant Principal Probation and Welfare Officer. The complainant submitted an application for the competition on 27 February, and on 1 March he notified Personnel Division by telephone that he was expecting to be admitted to hospital in the near future but that he did not yet have a definite date. During the week of 4-8 March the complainant enquired from Personnel when the interviews were likely to be held. The staff member he spoke to did not yet know. The complainant told her that he was to undergo his operation the following week, that he expected to be in hospital for 10-14 days and that his recuperation could take a further 10-12 weeks.
2.3 On 12 March, the day of his admission to hospital, the complainant received a letter from Personnel advising that his interview was scheduled for 21 March. He immediately telephoned Personnel to say that he would still be in hospital on that date. He said that he requested that the interview be re-scheduled for a date following his discharge from hospital, which he expected to be in 10-14 days.
2.4 The complainant underwent surgery on 13 March, and on 15 March his wife telephoned the Principal Probation and Welfare Officer (a member of the Interview Board) to say the operation had gone well and the prognosis was good. According to the complainant, his wife said that he still wanted to be interviewed but that he would be unavailable on the scheduled date. The complainant understood that the Principal Probation and Welfare Officer replied that he had very little influence on the re-scheduling of interviews.
2.5 The complainant was discharged from hospital on 22 March. The following day, he was visited at his home by his line manager. The complainant said that she told him she believed seven interviews had taken place, one candidate had not turned up and there had been one deferral. The complainant said he believed that he was the candidate whose interview had been deferred.
2.6 In the absence of any contact from Personnel, on 3 April the complainant enquired when his re-scheduled interview would take place. He said he was dismayed and angered to be told that the competition was over and the five successful candidates had been notified of their positions on the panel. He protested to the staff member that he had informed her and another member of staff that he required a re-scheduling because of his hospitalisation. She undertook to have an Assistant Principal in the Division call him back, but he was not contacted.
2.7 The complainant spoke to the Personnel Officer the next day and asked why his interview had not been re-scheduled. According to the complainant, the Personnel Officer's response was that these things happen and the competition could not be delayed. While he expressed sympathy, his attitude was that nothing could be done as the competition was now over. The complainant said he pointed out that he had told two members of staff in Personnel that he was about to undergo surgery, and that his wife had told the Principal Probation and Welfare Officer, almost a week before the interview date, that he required his interview to be deferred.
2.8 The complainant received several documents from the respondent following a request under the Freedom of Information Act 1997 (FoI). He denied the claim contained in these documents that he had not requested a deferral of his interview, but said that in any case section 16 of the 1998 Act placed the onus on an employer to reasonably accommodate the needs of a person with a disability by providing special treatment or facilities. He noted that the documents indicated that the Principal Probation and Welfare Officer "was anxious to ensure the interviews went ahead as there was considerable pressure to fill the vacant posts" and that "it would be unfair to the other candidates to hold up the interviews...the assumption being that [the complainant] would be out for several months." The complainant said this did not provide the respondent with a defence under the 1998 Act. He said the respondent refused and deliberately omitted to offer or afford him access to a promotional interview, in contravention of section 8 (8) of the 1998 Act.
2.9 The complainant said that a letter from the Personnel Officer referred to the respondent Department, like all other Departments, having ongoing difficulties in facilitating interviews for people who were unavailable for a variety of reasons to attend on the scheduled date and thereby missed their opportunity. The complainant said that the Personnel Officer must have regard to the distinct grounds in the 1998 Act - disability in his case - and could not regard the complainant's situation in the same way as other general reasons or excuses for not attending an interview. Another document obtained under the FoI request indicated that a request to re-schedule the interview would have been looked upon reasonably. The complainant said that to grant or not grant a re-scheduling of an interview did not fall within the favour of the Personnel Officer but was a legal obligation on all Personnel Officers to do all that is reasonable to accommodate the needs of a person with a disability.
2.10 The complainant also wrote to the Principal Probation and Welfare Officer to ask if he had told the other members of the Interview Board that the complainant would be unable to attend on the scheduled date but still wished to be interviewed. The response was that the message had been conveyed to Personnel. The complainant said that he believed this was mistaken and negligent. In his opinion all Interview Board members should have been informed that he was in hospital and could not attend, and that it would be necessary to re-schedule the interview in accordance with the requirements of the 1998 Act.
2.11 The complainant said that the re-scheduling of the interview, following his discharge from hospital, should have been arranged as a matter of routine policy and best practice in accordance with the obligations laid down by the 1998 Act. Although he requested to be interviewed both before and after his hospitalisation, this should not have been necessary if Personnel had been operating practices in accordance with the 1998 Act. The complainant said that he had lost seniority to five other colleagues as a result of being unlawfully excluded from competing for promotion, and he sought a restoration of this seniority as redress for the discrimination suffered.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent rejected the complainant's claim that he was discriminated against on the disability ground or otherwise. It said that he did not seek a deferral or re-scheduling of his interview. He did not indicate at any time that he would be available for interview immediately following his discharge from hospital. On the contrary, he indicated to the officials with whom he spoke that he expected to be out of work for at least several months following his surgery. The respondent said that it was left with no option but to proceed with the interviews and finalise the competition. It submitted that this was not unreasonable given thecircumstances.
3.2 The respondent contended in its initial written submission that that the complainant was not a person with a disability for the purposes of the 1998 Act. It subsequently conceded that the complainant's condition was capable of constituting a disability, but pointed out that his condition had not precluded him from working for almost four years prior to the interview date without taking any sick leave. Even though he had had two lengthy bouts of sick leave, in 1997 and 1998, he was not regarded by Personnel Division as being disabled. He also had not indicated to Personnel Division that he wished to be considered as having a disability. The respondent submitted that it was not reasonable to impose upon it the obligation of knowing that the complainant wished to be treated as a person with a disability.
3.3 The respondent said that the complainant was making a two-fold complaint. In the first instance, he claimed he had been directly discriminated against in relation to promotion, in contravention of section 8 (8) of the 1998 Act, which provides that:
...an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds-
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
3.4 Regarding this claim, the respondent said the complainant was offered access to promotion on exactly the same basis as all of his work colleagues. Had he requested that his interview be deferred until a date shortly after the scheduled date (that is, within one or two weeks of 21 March), the respondent's position was that his request would have been favourably considered. The complainant would have been treated in the same way as anyone unable to attend an interview due to illness, family commitments, bereavement and so on. The respondent said that, contrary to the complainant's assertion, seven candidates were interviewed, there was no deferral and no candidate did not turn up.
3.5 The respondent said that the second aspect of the complainant's case was that he was entitled to rely on section 16 (3) as a separate cause of action. This provides that:
(a) For the purposes of this Act, a person with a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
3.6 The respondent said that this subsection must be read in conjunction with section 16 (1) which provides:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual-
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
3.7 The respondent argued that, assuming the complainant was a person with a disability, he was not considered as other than fully competent to undertake his duties. It had not concluded that he would be unable to undertake his duties for the purposes of section 16 (1) (a), or that he was not fully competent for the purposes of section 16 (1) (b). In the circumstances, the respondent did not seek to place reliance on section 16 (1) to justify any decision in relation to the complainant, and it submitted that section 16 (3) had no application to his complaint. It further submitted that, even if section 16 (3) required it to conduct interviews in such a manner as to accommodate persons who were unavailable to attend for interview, it did take reasonable measures to accommodate such persons.
3.8 Regarding the redress sought by the complainant, the respondent said that it was impossible to know if the complainant would have been successful in the competition even if he had sought and been facilitated with a deferral. As a result, the respondent submitted that an order for compensation in the form of arrears of remuneration could not be awarded. The only possible order that could be made under section 82 of the Act was an order for compensation for the effects of discrimination. The respondent submitted, however, that it was impossible to properly calculate compensation in circumstances where the loss which the complainant claimed to have suffered was, in reality, unknowable.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of disability contrary to the provisions of the Employment Equality Act 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include disability.
4.3 The respondent initially argued that the complainant's medical condition did not constitute a disability. While it subsequently conceded that the condition was capable of constituting a disability, for the avoidance of doubt I consider that it may be useful for me to clarify the matter. Section 2 of the 1998 Act states:
"disability" means --
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
4.4 As described in 2.1 above, the complainant suffered from ulcerative colitis, an inflammatory bowel disease affecting the innermost layer of the large intestine. According to Black's Medical Dictionary (39th edition, A & C Black, London) suggested causes of the condition include various micro-organisms or an abnormal immune response, possibly to bacteria or certain foods. It appears to me to be clear that, at the time of his surgery, the complainant was suffering from a disability in the context of section 2 (b) and/or section 2 (c). Section 8 of the 1998 Act
4.5 Having found that the complainant had a disability for the purposes of the Act, it remains to consider what the consequences of this were, and what obligations, if any, the respondent owed to him. The respondent argued (dealt with at 3.3 and 3.4 above) that the complainant was treated in the same way as any other person who was unavailable to attend a scheduled interview, in compliance with section 8 (8) of the Act. However, the European Court of Justice has made it clear (in Gillespie and others v Northern Health and Social Services Boards and others  C342/93) that "It is well settled that discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations." I am satisfied that treating a person covered by one of the discriminatory grounds in exactly the same way as a person not so covered, where it is not reasonable to do so, may give rise to a finding of discrimination.
Section 16 of the 1998 Act
4.6 The complainant also claimed that the respondent was obliged by virtue of section 16 (3) (quoted at 3.5 above) to provide him with reasonable accommodation, in the sense of deferring the interview. In support of this argument, he referred to the Equality Officer Decision in Harrington v East Coast Area Health Board (DEC-E2002-001) wherein the respondent was found to have discriminated against the complainant - a wheelchair user - in contravention of section 16 (3), when she was unable to gain access to an interview room because the lift was out of order.
4.7 The respondent suggested that the decision in Harrington should not be followed, in that the Equality Officer had incorrectly stated that section 16 was silent in relation to whether an obligation was imposed on prospective employers to do all that was reasonable to accommodate the needs of prospective employees by providing special treatment or facilities. The respondent submitted that the facts at issue in Harrington readily permitted a finding of discrimination as prohibited by section 6 (2) (g), and that it was wrong to conclude that there was a separate breach of section 16 (3). It submitted that the use of the word "duties" in section 16 (3) clearly related back to section 16 (1), which refers to duties attached to [a] position. The respondent said that in no circumstances can the decision to seek promotion and to attend for an interview for that promotion be described as a duty attached to a particular position.
4.8 I note the respondent's argument in this regard, as section 16 refers quite specifically to the provision of special treatment or facilities to allow a person to be fully competent to undertake the duties attaching to a position, and the complainant was at all times considered by the respondent to be competent to undertake the duties attaching to his position. However, the Equality Office in Harrington made a very detailed analysis of the provisions of section 16, and concluded that "A literal interpretation would effectively render the effects of section 16 (3) meaningless and redundant and would produce an absurd result in that an obligation only to provide reasonable accommodation for people with disabilities in employment and not at the selection stage would mean that people with disabilities might never in fact be successful in getting into the workforce if their special needs were not reasonably accommodated at the selection stage subject to the nominal cost requirement."
4.9 In its determination of the appeal of Harrington (A Health Board and A Worker, ADE/02/7, Determination No 021) the Labour Court noted that the finding in respect of the contravention of section 16 was not in dispute between the parties, and it explicitly concurred with the amount awarded as compensation. In a recent case, An Employer and A Worker (ADE/04/8, Determination No EDA0413), the Labour Court referred to section 16 (3) in the following terms:
"The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training."
I am satisfied that section 16 is to be interpreted as applying to promotional interviews.
4.10 However, it is not clear to me in this claim that the respondent's treatment of the complainant was not reasonable. In the first place, there is a dispute between the parties whether the complainant sought a deferral of his interview. The respondent said it would have attempted to facilitate a reasonable deferral. From the written and oral evidence provided to me I am satisfied that the complainant could not have sought a reasonable deferral. He knew that he would be in hospital for 10-14 days and that he could expect to take 10-12 weeks to recuperate. These timeframes were suggested to him by his consultant, and were based on both surgery and recovery going well. On the balance of probabilities, I cannot find that he requested a postponement of his interview for a date immediately after his discharge from hospital. He agreed at the hearing of the claim that he was not in a position to indicate any timeframe other than that suggested by the consultant. In the event, his recovery was much better than the time indicated and he would have been available for interview quite soon after the scheduled date. At the time of the interviews, however, the respondent clearly and plausibly understood that he would be absent for a period of between three and four months at a minimum. I cannot find that it could have been obliged to defer a promotion competition to an indeterminate date.
The role of the Principal Probation and Welfare Officer and Personnel
4.11 The complainant said he believed that the actions of the Principal Probation and Welfare Officer (see paragraph 2.10 above) had been mistaken and negligent when he did not notify the Interview Board that the complainant's interview would have to be re-scheduled. I cannot agree with the complainant's assertion in this regard. The Principal Probation and Welfare Officer was a member of the Interview Board, and as such had no role in arranging interviews or scheduling dates for candidates. I consider the course of action he pursued, in passing the information on to Personnel, was the appropriate one in the circumstances.
4.12 The Labour Court has applied a consistently high standard to employers in cases where reasonable accommodation of a person with a disability is concerned. The minimum requirement is that employers be proactive in relation to the matter, in the sense of acquiring all material information, and that different options be discussed with affected employees or their medical advisers. The caselaw generally has involved dismissal situations where the employees' capacity to fulfill their duties had been diminished and they were dismissed without reasonable accommodation being considered.
4.13 As previously stated, the complainant's capacity to carry out his duties was not in question. However, I consider that the respondent should have been more proactive in its dealings with the complainant. It could have been made clear to him prior to his surgery that the interviews would have to proceed on the appointed date, or within a short timeframe thereafter.
4.14 As I am satisfied that the respondent credibly believed that his absence would be long term, I cannot find that it failed to provide him with reasonable accommodation. It does not appear to me, however, that the respondent was actively aware of its obligations to reasonably accommodate a person with a disability. I recommend that procedures be put in place to ensure that future candidates for promotion, who are unable to attend for interview due to disability, are actively engaged with to determine whether a reasonable deferral is possible. The respondent should also note that employees are not obliged to declare themselves to have a disability before they can seek reasonable accommodation. Once an employer is on notice that a disability exists, the provision of reasonable accommodation is obligatory.
5.1 Based on the foregoing, I find that the Department of Justice, Equality and Law Reform did not discriminate against Mr O'Sullivan on the ground of disability, contrary to the provisions of the Employment Equality Act, 1998.
20 December 2004