Decision in accordance with the
Employment Equality Acts 1998-2008
DEC – E2008 – 069
A FAS Social Employment Scheme
(Represented by SIPTU)
Mr. W referred a claim to the Director of the Equality Tribunal, received on 12th February 2007, under the Employment Equality Acts 1998-2004 on the disability ground. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, on 1st July 2008 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A hearing of the claim took place on Monday 3rd November 2008. In reaching my decision I have taken account of all evidence presented, written and oral.
Summary of the Complainant’s Case
In January 2005 the complainant approached the supervisor of the respondent community employment scheme with a view to obtaining employment. The supervisor discussed this and the retention of the complainant’s disability allowance/benefit. It was discussed further the following day when the complainant returned with his PPS number. The Supervisor completed a form for the Department of Social and Family Affairs in Longford. The complainant’s understanding was that when a response was received from the Department the Supervisor would contact him. He also understood that the Supervisor had no vacancies at that time and that if one should arise he would contact the complainant. The complainant’s request was for general operative employment. It was his understanding that he was on a list of some sort waiting for a vacancy to arise and although he called in a couple of times there were no vacancies.
In 2006 the complainant had a further illness and following this he checked with his doctor who told him that work on the scheme would in fact be good for him. The complainant called in to the Supervisor of the scheme in September 2006. He asked for a letter to show that he had sought work with the scheme which he collected the following morning, 13th September 2006. He took the letter to the FAS Community Employment Officer visiting the town that day. The letter stated “[the complainant] applied for a position on the above scheme in 2005 and was not successful in his application.” When the FAS officer pointed out that there was no information in the letter the complainant returned to the Supervisor. He was upset that the letter said he was unsuccessful as he understood as above that he was on a list. He indicated to the Supervisor that he would pursue the matter and the reply was “I don’t care if you go to Michael Martin.” When the complainant asked for a reason why he was unsuccessful the reply was that “If I told you that you would have me up.” The complainant immediately drove to the FAS office in Cork city and subsequently entered a lengthy complaints process with FAS including FOI requests and appeals, approaches to the sponsors of the scheme locally, in addition to this complaint.
Summary of the Respondent’s Case
The purpose of the scheme is to provide employment and in particular to provide training for participants to help get them back into employment. Participants are given a fixed-term contract running until the following October as FAS funding runs from October to October. Participants are usually referred from a number of sources such as FAS, dole officers, probation officers, Traveller representatives, disability groups, single parents, Headway and sometimes unemployed people can approach the scheme directly.
The Supervisor of the respondent scheme stated that there was no formal interview of the complainant with an interview panel. It is his practice to sit down with applicants and take the necessary information from them. He must first establish what type of employment is sought and that an applicant is eligible. The form that the complainant referred to is in fact a form that must be completed by the participant themselves and only when a place on the scheme has been secured. Therefore at the time of the meeting the form did not apply to the complainant. The Supervisor agreed that the two meetings took place in January 2005 but was clear that the work requested was caretaker and that other types of work were ruled out by the complainant. The Supervisor gave evidence that the complainant indicated that he was unable to work outdoors due to his disability and that the type of position he sought was caretaker. His hearing difficulties meant that it would be unsafe for him to operate a lawn mower. The Supervisor indicated that the respondent scheme did not have any caretaker positions at all but should one arise the complainant would be considered. The Supervisor, during the 2005 meetings, referred the complainant to a number of other scheme supervisors and his response was that he had already spoken to one, Supervisor A and he would not work with the others.
Supervisor A gave evidence at the hearing that the complainant sought caretaker work from her and indicated that other work was unsuitable for his due to his disability. She told him that a vacancy would arise in the short term relating to the maintenance of parish property including cutting grass but he refused this.
The respondent scheme supervisor stated that the complainant was treated exactly as any other person, in that he took his details, checked eligibility, established what type of work was acceptable and checked if a vacancy was available.
Between one and two years later the complainant contacted him and requested a letter. The Supervisor often gets such requests and had no difficulty in providing such support as he assumed it was in support of the complainant’s disability benefit. He kept the letter simple as he did not want to draw attention to the fact that the complainant refused to do certain types of work in case this could be. His letter indicated that the complainant had applied for work and that he was not successful. When the complainant returned, in an aggressive manner, looking for a reason why he was unsuccessful the Supervisor told him that it was not unusual for employers not to indicate a reason.
The respondent does not have a formal reception process for applicant information. Information recorded includes the name, address and other contact details and is held in the supervisor’s filofax. The record relating to the complainant was presented at the hearing.
Conclusions of the Equality Officer
Initially, it is necessary to resolve the dispute in respect of the type of work applied for by the complainant. There is no written record of what was applied for in 2005. The complainant stated that at all times he was interested in general operative work. The respondent stated that the complainant was only interested in caretaker work and this was supported by the evidence of another scheme supervisor. It may be that the complainant’s interest in 2006 related to general operative work based on his doctor’s advice however there is no evidence that this was communicated to the scheme. Based on the evidence presented to me I find as a fact that the complainant requested only caretaker work in 2005.
The complainant indicated that he was unclear as to the processing of his application and I am satisfied that he believed he was on a list awaiting a vacancy. I am also satisfied that his name was recorded in the only form of records used by the respondent, that is in the Supervisor’s filofax, and that the Supervisor had mentally ‘recorded’ the application but only in respect of any potential caretaker position.
I understand that the meeting between the parties on 13th September 2006 was a difficult and possibly acrimonious one. However, I am satisfied that what was said was not in any way motivated by the complainant’s disability.
Finally, I am satisfied, based on the evidence presented to me, that in all respects the complainant was treated as all other applicants. He was unsuccessful in gaining employment on the scheme because there was no suitable employment as a caretaker for him on the scheme. No less favourable treatment of the complainant arises, and therefore no less favourable treatment based on his disability arises. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 6 and 8 of the Act, including Section 8(5) in particular.
Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the respondent did not discriminate against the complainant when he was unsuccessful in gaining employment on the scheme, or in respect of the scheme’s treatment of his application.
However I recommend that a process be devised for recording applicant information in relation to the scheme, perhaps incorporating the applicant’s confirmation that what is recorded is correct. This is a recommendation only and is not binding on the respondent.
30th December 2008