A Complainant vs Mid Western Health Board(Represented by BCM Hanby Wallace, Solicitors)
The dispute concerns a complaint that the Mid Western Health Board (the respondent) discriminated against the named complainant on the disability ground contrary to the provisions of the Employment Equality Act, 1998 in the conduct of a competition to appoint Assistant Staff Officers Grade IV in the area of Information and Communications Technology (ICT).
2.1 The complainant, who suffers from Multiple Sclerosis (MS), applied for an ICT position at the respondent Health Board. He was unsuccessful in his application and alleges that the reason why he was unsuccessful was that he suffers from MS.
2.2 The complainant referred a complaint to the Director of Equality Investigations on 20th August, 2002. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, 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 on 21st November, 2002. Submissions were sought from both parties and a hearing of the complaint was held on 13th June, 2003. Further material was received from the respondent subsequent to the hearing and further correspondence ensued up to 31st August, 2004.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant states that he has 17 years experience in the area of computer hardware, software and telecommunications equipment. He contrasts this with the one year's relevant information technology experience specified in the advertisement for the position. In his CV, which was included in his submission, the complainant documents his experience dating back to 1984. Over the period 1984 to 2001 he held various technician posts developing and testing computer and related hardware both in Ireland and in the USA. He held one such position as group leader for over two years with a major American computer manufacturer. His last full time position was as a software development engineer with an Irish company which he left in July, 2001, nine months before the disputed competition. The complainant lists his qualifications as a Diploma in Electronic Engineering, Certificate in Audio Engineering, course in C Programming and a B.Sc. Degree in Computer Science.
3.2 The complainant states that he was awarded 49 marks at interview for 'Management Skills' although he was not asked any questions on management. He states that he was asked no questions about his software development skills while the greater part of his interview was devoted to his electronics experience. The respondent had stated in its submission that the reason why he was not questioned in detail about his software experience was that it was not considered relevant to the advertised position however the complainant would regard his electronics experience as being less relevant. The complainant states that he was asked at interview 'do you think you are over qualified'. The complainant states that he is aware of a 3% quota for the recruitment of people with disabilities in the public service but believes this exists in name only and that the members of the interview board were exercising their own personal prejudices. He believes that the interview was 'a farcical charade' and that the respondent had no intention of recruiting him because of his disability.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the allegation that the complainant was discriminated against on the grounds of his disability and states that the complainant has failed to adduce any evidence that his disability was a factor in his failure to be called for a second interview and has failed to shift the burden of proof to the respondent. The respondent refers to Dublin Corporation v Gibney1 in this regard.
4.2 The respondent argues that the selection of candidates for the second interview was based on their performance at interview having regard to their knowledge, management skills, interpersonal skills and competencies in relation these skills and on the basis of the person specification /selection criteria given to all candidates. A total of 274 applicants responded to the job advertisement of whom 227 were called to the initial interview. Three interview boards interviewed these candidates and 64 were shortlisted for the final interview, 21 of whom were successful and placed on a panel. Eight applicants were appointed at the time of the hearing. Arising from the hearing the respondent furnished copies of the CV's, marks and rankings from the first round interviews of the 21 candidates who advanced to the final interview from the interview board that interview the complainant..
4.3 The respondent states that the complainant's interview board was not aware of his MS until he volunteered the information himself and further states that the members of the interview board had no knowledge of the symptoms of MS or any future implications for employers imputed to them by the complainant in his submission. The respondent stated at the hearing that it was not a function of the interview board to determine medical suitability for the post. Successful candidates would, in due course, be required to undergo a pre-employment medical examination. The respondent states that at no time was it the respondent's view that the complainant's MS was relevant to his suitability for the role.
4.4 With regard to the 49 marks awarded to the complainant under the heading 'Management Skills', the respondent states that this was the mark given to any candidate who failed to meet a satisfactory standard in relation to a particular competency and states that the complainant did not demonstrate his skill in this area to the satisfaction of the interview board. The respondent states that the complainant has confirmed that the interview board was cordial and respectful. The respondent adds that there was no evidence of discriminatory conduct or questioning at interview.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the disability ground in terms of Section 6(2)(g) of the Employment Equality Act, 1998 and contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 It is clear in the first instance that the interview board which interviewed the complainant was not aware that he suffered from MS until he volunteered the information himself in the course of the interview and that there was no evidence that the interview board had adopted a negative position in relation to the employment of applicants with disabilities prior to the interview.
5.3 In the course of the hearing the complainant stated that he had left his previous full time position as a software development engineer because he couldn't take the pressure. This occurred eleven months prior to the disputed interview and he was engaged in various courses and computer related activities in the meantime including occasional work with a voluntary body which is engaged in the development of assistive technologies for persons with disabilities and was also attempting to set up his own business. It would have been clear to the interview board in examining this part of the complainant's CV that he had not been in full time employment for some time. I am in no doubt that the matter of the complainant's MS would have emerged at that stage had he not volunteered the information from the outset.
5.4 I note that in his CV the complainant listed among his qualifications a B.Sc. Degree in Computer Science. In the course of questioning the complainant at the hearing in relation to his qualifications I asked him in what year he qualified for the B.Sc. as no date was shown on his CV. The complainant stated that he had not in fact qualified but had progressed to 'level 3'. The respondent confirmed that the complainant's stated qualifications were taken at face value at the preliminary interview and that he was awarded 15 marks in respect of a degree, although not among the listed minimum requirements for the position, which it now transpires he did not possess. I note from the application form that applicants are required to sign a document headed 'Legal Declaration' stating that the particulars furnished are accurate and that the applicant may be required to furnish documentary evidence in relation to particulars given. I note also that the form includes an acceptance on the part of the applicant that any false or misleading information will lead to automatic disqualification. It is clear that had the complainant been successful at interview and asked at some stage to produce documentary evidence of a B.Sc. qualification he would not have been in a position to do so.
5.5 I requested the respondent to furnish comparative information in relation to other candidates who were interviewed by the same preliminary interview board as the complainant and who progressed to the second interview. The respondent furnished copies of the applications and marks awarded (at the initial interview) of 21 candidates along with their placing, if any, on the final panel of successful candidates. I note that of all of these candidates, the complainant was awarded the highest mark i.e. 58, for qualifications and experience. It was established at the hearing, as outlined
at 5.4 above, that this mark should have been lower. I am satisfied that there was nothing in the marks awarded for qualifications and experience to suggest that the complainant was treated less favourably because of his disability and indeed it is clear that he was credited with full marks for a degree course which he had not completed.
5.5 At the hearing the respondent described the Grade IV post within the ICT area as an 'entry level' post which involved the provision of technical support to system users. The respondent states that while the complainant emphasised his experience in the area of software development, the post on offer did not involve the development of software but was more of a 'Jack of all trades'. Referring to systems analysis, an area emphasised by the complainant, the respondent stated that it would not recruit at Grade IV level for systems analysts. Regarding the complainant's performance at interview, the respondent makes the case that the complainant did not sell himself and did not demonstrate a satisfactory level of competence in relation to criteria for the job. The respondent denies that the complainant was asked if he was over qualified for the position. Notwithstanding the position regarding the complainant's incomplete degree course, I found the marks awarded to the complainant at interview as relatively low having regard to his many years experience in the ICT industry. He received 234 out of a possible 400 marks in relation to Knowledge, Management, Interpersonal Sills and Competencies, the lowest mark awarded by this interview board, compared with the highest mark of 359. However having heard the evidence in relation to the complainant's interview I must, on balance accept that the marks awarded reflected his performance at interview. I note that a candidate who was awarded 353 marks at the initial interview but who was deemed to have no relevant experience (was awarded no marks for experience), did not progress to the final interview either. It is for the respondent to determine the relevance of a candidate's experience to a particular post, coupled with their performance at interview and it is clear that the respondent in this case did not view the knowledge and skills gained during the complainant's many years experience in particular sectors of the ICT industry as relevant to the entry level post on offer. I am satisfied that on the balance of probabilities the complainant's illness was not a factor in its decision not to call him for a second interview and that the complainant has failed to adduce prima facie evidence of discrimination on the disability ground.
6.1 On the basis of the foregoing, I find that the Mid Western Health Board did not discriminate against the complainant on the disability ground in terms of Section 6(2)(g) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act in the conduct of the competition to appoint an Assistant Staff Officer - Grade IV.
30 September, 2004
1 Dublin Corporation v Gibney EE 5/1986