FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A GOVERNMENT DEPARTMENT (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - AN EMPLOYEE (REPRESENTED BY A PUBLIC SERVICE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998 Dec-E2005-034.
BACKGROUND:
2. The Labour Court investigated the above matter on the 31st January, 2006. The Court's determination is as follows.
DETERMINATION:
Introduction
This is an appeal by a Government Department against the decision of the Equality Tribunal which found that it had discriminated against Mr B on the disability ground in contravention of Section 8 of the Employment Equality Act 1998 (the Act), in not offering him promotion to the grade of Assistant Principal Officer (AP). For ease of reference in this determination the parties are referred to using the designations prescribed by Section 74(4) of the Act. Hence Mr B is referred to as the Complainant and the Government Department is referred to as the Respondent.
Background
The Complainant is a Civil Servant with the grade of Higher Executive Officer. He is a recovering alcoholic and has not been active since 1995. He has been at his existing grade since December 1979 and is the longest serving HEO in the Respondent Department. He applied for promotion to the next grade (AP) on a number of occasions through a system of promotions based on a combination of seniority and suitability. This involves consideration of candidates by the senior management of the Department in what is referred to as a consistory. This is one of three systems by which Civil Servants can attain promotion.
The consistory system involves an assessment of the candidate by his or her line manager against predetermined criteria. The Principal Officer presents the assessment to the consistory and makes the case as to the candidate’s suitability for promotion. The consistory consists of the Secretary General of the Department, all Assistant Secretaries General and Principal Officers. Each participant is entitled to question the suitability of a candidate. Following a discussion on each candidate a consensus may emerge as to his or her suitability for promotion or the question may be put to a vote. In the event of a vote at least 60% of the consistory must approve a candidate’s suitability before they can be placed on a promotional panel. Those placed on the promotional panel are ranked in order of seniority and vacancies which arise during the currency of the panel are filled accordingly. A panel is normally maintained for a period of one year and is then renewed.
The Complainant applied unsuccessfully for inclusion on promotional panels established in 2000, 2001 2002. The consistory to compile a panel for 2003 was convened in November 2002. However, for technical reasons the outcome of the consistory was subsequently voided and it was reconvened in January 2003. This consistory effectively endorsed the outcome of the earlier voided meeting and the Complainant was again deemed to be unsuitable for promotion. The Complainant applied again in 2004 and was successful. Because of his seniority he was placed at the head of the panel for that year. No vacancies to be filled from the 2004 panel arose during its currency. The Complainant applied again in 2005. However on that occasion he was deemed unsuitable and was not placed on the panel.
The Complainant contends that his exclusion from the panel, and his consequent failure to attain promotion, was due to his alcoholism. This condition, he contends, is a disability within the meaning of Section 6 of the Act. He presented a complaint to the Equality Tribunal pursuant to Section 77 of the Act on 6th March 2003. Having regard to the limitation period prescribed by Section 77(5) of the Act, that complaint could only relate to the exclusion of the Complainant from the panel created in January 2003 and not to his exclusion from the earlier panels. The complaint was investigated by an Equality Officer who held with the Complainant. The Respondent appealed against that decision to this Court.
Disability.
By way of a preliminary point Counsel for the Respondent contended that the Complainant is not suffering from a disability, as alcoholism cannot be so classified. In the alternative Counsel submitted that at the material time the Complainant was not suffering from alcoholism, as he had not drank alcohol since 1995.
Section 2 of the Act defines disability as follows:
- "disability" means—
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a Court may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. (See the decision of the Supreme Court inMason v Levy [1952] IR 40.)Paragraph (3) of Section 2 includes within the statutory definition a “condition illness or disease” having the symptoms referred to therein. It is a notorious fact that active alcoholism results, to varying degrees, in each of the symptoms referred to at paragraph 3, and in particular that it frequently results in disturbed behaviour. The Complainant’s evidence to the Court disclosed that while he was drinking to excess his behaviour was furtive and withdrawn and left him unable to carry out the normal functions of his job. By any normal standard such behaviour could properly be classified as coming within the scope of paragraph (e) of the statutory definition of disability. The Complainant’s pattern of compulsive drinking was indissociable from his alcoholism. It follows that the consequences which flowed from his drinking pattern were the results of his alcoholism. However, in order to come within the statutory definition the symptoms referred to must be the result of a condition, illness or disease.
In considering if alcoholism is a condition illness or disease the Court was referred to the decision of an Equality officer in the case ofA Complaint v Caf� Kylemore (DES-S/2002/24) (a case under the Equal Status Act 2000) wherein the following passage appears: -
- “In Black's Medical Dictionary 39th edition it states inter alia that:
"Alcohol depresses the central nervous system and disturbs both mental and physical functioning...... Persistent alcohol misuse leads to physical, mental, social, and occupational problems, as well as the risk of dependence ..... Alcohol dependence - is the most serious, and can severely disrupt health and social stability.....many researchers consider alcohol dependence to be an illness....." In relation to addiction the Dictionary states that: "it was not until the mid 18th century that excessive drinking, or 'inebriety' as it was then known, came to be regarded as some sort of disease. Alcohol dependency is also described in the Dictionary as a "Drug Addiction or dependence is the compulsion to take a drug repeatedly.
The definition of alcoholism by the National Council on Alcoholism and Drug Dependence, Inc, New York, is "Alcoholism is a primary, chronic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterised by continuous or periodic impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notable denial".
The Court of Appeal in Northern Ireland in an case concerning the entitlement of a person to a war widow's pension, under the relevant legislation, where the cause of death was certified as alcoholism the Judge stated: "It was not in dispute that alcoholism is a disease and hence would fall within the definition of an injury contained in the amended Schedule 4 to the 1983 Order."
The definition of alcoholism in Collins English Dictionary and Thesaurus 21st century edition "alcoholism is a condition in which dependence on alcohol harms a person's health, family life etc."
It appears to me from the above definitions that alcoholism is an addictive disease and the consequence of that addiction leads to health problems both mental and physical. I am satisfied that the condition of alcoholism comes within the definition of disability in the Equal Status Act, " a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgements or which results in disturbed behaviour." and this definition concurs with the accepted medical definition of the disease alcoholism in the various dictionaries. I find therefore that the complainant is covered by the discriminatory ground.”
The definition of disability under the Equal Status Act 2000 is materially the same as that in the Employment Equality Act 1998. The case is therefore apposite the instant case and the Court adopts the careful analysis and reasoning of the Equality Officer in the passage quoted. Accordingly the Court has no hesitation in accepting that alcoholism is a condition illness, or disease coming within the intendment of paragraph (e) of the definition of disability at Section 2 of the Act.
The Respondent submitted in the alternative that since the Complainant no longer suffered from alcoholism at the material time he cannot maintain a complaint of discrimination on the disability ground in relation to his exclusion from the promotional panel in 2003. That submission takes no account of the plain wording of the statute which provides that the definition “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”.Moreover, the Court accepts the conclusion of the Equality Officer that alcoholism is, in effect, an incurable condition and it could never be said that a person has fully recovered from the condition.
For all of these reasons the Court is satisfied that at the time material to his complaint the Complainant was suffering from a disability within the meaning of Section 2 of the Act.
The Evidence.
Evidence was given by Ms McD, who is the Personnel Officer of the Respondent, in relation to the purpose and procedures of the consistory system. Ms McD also gave evidence concerning the role and function of the AP grade within the Respondent Department. Evidence was given by Mr K who was the Complainant’s AP and his immediate manager at the material time. This witness prepared assessments on the Complainant performance for the purpose of his application for promotion.
Mr R, who was the Complainant’s Principal Officer at the material time gave evidence of having approved the favourable assessment of the Complainant prepared by Mr K and of having presented his case for promotion at the consistory which is the subject of this complaint. Mr R and Mr K also gave evidence in relation to a meeting with the Complainant, after the result of the 2003 consistory, for the purpose of providing him with feedback on his application.
Two further witnesses, Mr H and Mr PB, who are Assistant Secretaries General with the Respondent, gave evidence in relation to their participation in the impugned consistory and on their understanding of the reasons why the Complainant was deemed unsuitable for promotion. Both witnesses told the Court that the Complainant’s alcoholic condition was not a factor in the decision not to include him in the panel. They said that the decision was based purely on consideration of his suitability. Finally, the Complainant gave evidence before the Court.
Facts.
The material facts of this case, based on the admissions of the parties or the Court’s evaluation of the evidence adduced, are as follows: -
The Complainant started drinking to excess in 1990. His drinking pattern had a serious impact on his work and he gradually became incapable of functioning at his job. In 1995 his then AP, Mr F, told the Complainant that his behaviour was no longer tolerable and advised him to obtain help. The Complainant first attended a clinic in Dublin where he underwent treatment for alcoholism for three weeks. He later relapsed but subsequently underwent further treatment at a clinic in the west of Ireland. Following his discharge from the clinic the Complainant underwent a programme of aftercare for three years.
The Court is satisfied that the Complainant’s work performance and self –confidence were adversely affected by his condition. However, he showed significant improvements in both respects as his recovery continued.
It was common knowledge amongst the Complainant’s colleagues that he was a recovering alcoholic. In that regard when Mr K was first assigned responsibility for the section in which the Complainant worked he was specifically informed by his manager of the Complainant condition and history.
The Complainant was assessed for promotion in 2000 and 2001 and was given a ranking of D. He was subsequently deemed unsuitable for promotion by the consistory. In 2002 he was again assessed and was given a ranking of B. Of those placed on the promotional panel created by the consistory in 2002 / 2003, one received an overall ranking of C and fourteen received a ranking equal to that of the Complainant. The Complainant had significantly greater service that those placed on the panel. On a similar ranking the Complainant was placed on the panel in 2004 but not placed in 2005.
In December 2001 the Complainant met, at his request, with Mr R and Mr K to discuss his assessment of that year and to obtain feed-back on the consistory at which it had been considered. The Complainant’s recollection is that Mr R told him that it was his perception that even if he were to obtain the maximum marks possible in his assessment he would still not be placed on the promotional panel because some very influential people opposed him. Mr R had no recollection of making any such remarks and told the Court that he would not have been of the opinion imputed to him. Mr K had no recollection of the meeting referred to by the Complainant. The Complainant made contemporaneous notes of the meeting and in a letter to his Union Branch Secretary dated 21st January 2002, he recited the remarks allegedly made to him by Mr R. The matter appears not to have been pursued further by either the Complainant or his Union at that time.
The Court notes the conflict of evidence on this point between the Complainant and Mr R. It also notes Mr K’s absence of recollection of the meeting concerned. Having considered the evidence of all those who testified on this point, the Court has come to prefer the Complainant’s recollection of the meeting and accepts that his version of what was said is substantially correct.
The Court accepts that a candidate’s assessment ranking is not regarded as determinative of his or her suitability. It is ultimately a matter for the consistory to collectively decide whether or not the candidate has the attributes necessary to carry out the duties of the higher grade. However, the Court is also satisfied that a candidate’s line manager’s assessment is of considerable weight in the process. At the consistory in 2002 / 2003, the Complainant’s line manager assessed him as suitable for promotions and did not resile from that position in the course of the consistory.
The Court is satisfied that most, if not all, of those present at the consistories at issue knew that the Complainant is an alcoholic. The Court does, however, accept that this was not adverted to by any of the participants who spoke at the meeting.
The impugned consistory was attended by approximately 30 Officers of the Respondent. No more than six of those participated in the discussion on the Complainant’s candidature. A number of participants raised questions regarding the Complainant’s suitability for promotion, two of whom, Mr H and Mr PB, gave evidence before the Court. Mr F, who is now an Assistant Secretary and who had been the Complainant’s manager at the time of his active alcoholism, also raised question concerning his suitability. It appears from the evidence that these questions related,inter alia,to the Complainant self-confidence and his ability to represent the Respondent at external meetings
At the close of the discussion on the Complainant’s candidature the Secretary General of the Respondent (who chaired the consistory) put it to the meeting that there was a consensus against the Complainant’s suitability for promotion. None of the participants demurred and no vote was taken. No minute or other formal record of the meeting was maintained nor was the basis upon which candidates were deemed suitable or unsuitable reduced to writing.
Burden of Proof
The apportionment of the burden of proof in all discrimination cases is now governed by Section 85A of the Act, as inserted by Section 38 of the Equality Act 2004. This Section provides as follows: -
- 85A.—(1) Where in any proceedings facts are
established by or on behalf of a complainant from
which it may be presumed that there has been discrimination
in relation to him or her, it is for the
respondent to prove the contrary.
There is no disagreement between the parties as to the applicability of this Section in the instant case. The appropriate test for determining if that burden is shifted is that formulated by this Court inTeresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent.
There is no exhaustive list of factors which can give rise to an inference of discrimination. However in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can in themselves give rise to such an inference. In this case the process was wholly lacking in transparency and a candidate’s chances of success were as much dependant on their P.O’s power of advocacy and his or her standing with their peers, as on the candidates ability to undertake the duties of the higher post. Moreover candidates with equal assessment were treated differently in that 14 candidates who were ranked equal to the Complainant were deemed suitable for promotions whereas the Complainant was not. Yet, without any improvement in his ranking, the Complainant was deemed suitable for promotion in a year in which no vacancies came to be filled from the panel (2004) and on the same ranking in 2005 was again rejected as unsuitable.
The witnesses who gave evidence on behalf of the Respondent sought to explain these anomalies as being innate features of the consistory process. Nonetheless, the Court is satisfied that the procedure followed in this case, and the result which it produced, were so discordant with normal standards of reasonableness and objectivity that they must constitute facts from which it may be presumed that there has been discrimination in relation to the Complainant.
Conclusion.
Article 2 of Directive 2000/78 (Equal treatment in employment and occupations) provides that the principle of equal treatment shall mean that there shall be no direct or indirect discriminationwhatsoeveron the grounds of disability (emphasis added). It is well settled that in interpreting national law the Court must do so in light of the wording and purpose a Directive so as to achieve the result achieved by the Directive (seeMarleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135). It is therefore necessary for the Respondent to prove on the balance of probabilities that the rejection of the Complainant for promotion was in no sense whatsoever on grounds of his disability.
Further, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (seeBarton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales inWong v Igen Ltd and othersIRLR 258)
The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (seeNevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).
In this case the Respondent, up to and including the hearing of this appeal, did not accept that alcoholism is a disability within the meaning of the Act. On that account the nature and scope of its statutory duty to avoid discriminating against the Complainant on the disability ground was never specifically considered by the Respondent. Crucially, the Respondent never adverted to its duty under Article 5 of Directive 2000/78 (and Section 16 of the Act) to take appropriate measures to enable the Complainant to overcome any features of his disability which impede his ability to advance in employment.
The witnesses who gave evidence for the Respondent told the Court that the consistory declined to place the Complainant on the promotions panel because there was a consensus that he was unsuitable for promotion. That is a mere assertion which has no probative value. The evidence disclosed that between 25 and 30 Senior Officers of the Respondent participated in the consistory. Some five or six raised question in relation to the Complainant’s candidature. Two of those who asked questions gave evidence (Mr H and Mr PB). It was suggested that the ranking which the Complainant obtained in 2002 showed such an improvement over previous assessment as to cast doubt on its reliability. It appears not to have entered the consciousness of those who raised these questions that the Complainant’s continuing rehabilitation might provide a cogent explanation for his significantly improved work performance.
The Court was also told that issues were raised by some unidentified participants concerning the Complainant’s self-confidence and his dependability in representing the Respondent at external meetings. While this Court does take a relaxed attitude to the admission of hearsay evidence and witnesses were allowed to recall the statements made by others not in Court, they could not explain the true purpose of those statements or the effect which they may have had in influencing the decision of others. It is inherently possible that such questions were based on the Complainant’s previous record of uncontrolled drinking and such a possibility cannot be discounted by hearsay evidence. In that regard it appears that Mr F (who was the Complainant’s immediate manager during his last episode of uncontrolled drinking) spoke against the Complainant being placed on the panel. Mr F did not give evidence before the Court.
The decision on the Complainant’s suitability was taken when the Chairperson put it to the meeting that there was a consensus against placing him on the panel. As no one demurred the Chairperson’s proposal was deemed carried. The Chairperson did not give evidence and the Court cannot speculate as to the reason why he reached that conclusion or as to the underlying rationale for the consensus relied upon. Finally, the absence of any minute or record of the consistory, in itself, makes it impossible for the Respondent to satisfy the Court that the reasons for the Complainant’s exclusion from the impugned panel were wholly unrelated to his disability.
For all of the above reasons the Court is satisfied that the Respondent cannot succeed in this appeal and that the Decision of the Equality Officer must be upheld.
Determination.
It is the Determination of the Court that the Respondent did discriminate against the Complainant on the disability ground when it failed to place him on a panel for promotion in January 2003. The Court is further satisfied that the redress ordered by the Equality Officer is fair and reasonable having regard to all the circumstances. Accordingly, the Respondent is directed to implement the said order as follows in accordance with the Decision of the Equality Officer: -
1. that the complainant is appointed to the relevant grade with immediate effect and that this appointment is backdated to the date of the first appointment made from the panel established following the consistory meetings on 20 November, 2002 and 24 January, 2003;
2. that he is paid the full necessary adjustment in salary and any other benefits that applied to the post during the period at (i) above;
3. that the respondent pay the complainant €6,000 by way of compensation for the distress suffered by him as a result of the discrimination;
4. whilst acknowledging that the consistory method of promotion is accepted by the complainant’s trades union as a suitable mechanism for promotion, the respondent should take immediate steps to ensure that the process is conducted in an open and transparent fashion and that the reasons by which it arrives at its decisions can be clearly identified. In particular adequate records must be retained in order to demonstrate that the process is objective and free from bias on any of the grounds covered by the Act.
Decision of the Equality Office is affirmed and the Respondent’s appeal herein is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
14th February, 2006______________________
JBChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.