THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009- 027
Mr. Niall Walsh
(represented by P.J. O’ Driscoll & Sons Solicitors)
Webprint Concepts Ltd.
File Reference: EE/2006/289
Date of Issue: 8 April 2009
This dispute involves a claim by Mr. Niall Walsh that he was discriminated against by Webprint Concepts Ltd. on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Acts, 1998 and 2008 and contrary to section 8 of those Acts, when it failed to recruit him to the position of printer following interview in March, 2006.
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 3 July 2006 alleging that the respondent had discriminated against him on grounds of disability in relation to the interview process and access to the post of printer with the respondent. The complainant further contends that he was suitably qualified for the post and that the respondent took his visual impairment into account in deciding not to appoint him to the post of printer. The respondent disputes this and maintains that the complainant was not recruited as he did not have the required number of years experience in web offset printing.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 13 November, 2008 to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts 1998-2008. This is the date I commenced my investigation. Written submissions were received from both parties. A hearing on the complaint was held on 27 February, 2009.
3. Summary of complainant’s case
3.1 The complainant qualified as a printer in 1991 from the Dublin Institute of Technology, Bolton Street, Dublin. He worked as a printer in his father’s business until 1994 when he opened up his own printing business. His work involved the production of high class brochures, weekly magazines, working with various printing machines etc. Subsequently, he was employed by Irish Examiner Ltd. on a short term contract from 1 October, 2005 to 4 March 2006 as a printer involved in the printing of the Irish Examiner newspaper. His work included placing reels on machines, pasting up flyers, making plates for the printing machine, loading plates onto machine, setting the folder, control of CPU unit, control of ink, water pressure of reels going through the machine. He gained six months experience in web offset printing during this time and claims that his job with the Irish Examiner Ltd. was the exact same job as that of printer with the respondent organisation.
3.2 Complainant suffers from a condition known as ‘eye shadowing’ which means that the complainant has only partial sight in one eye. He has this condition since birth. The condition does not interfere with his sight or his ability to carry out his role as a printer. In this regard, the complainant successfully passed a medical application including an eye test with the Irish Examiner Ltd. prior to commencing work as a printer with that company in October, 2005. The Complainant holds a full driving licence and is not required to wear glasses.
3.3 The job specification for the position of printer stated ‘applicants should have basic skills in printing with preferably web or high quality sheet-fed experience. Ideally it would be an advantage if you have experience in national newspaper production and some knowledge of colour quality control.’ The complainant submits that he fulfils all the criteria listed in the job specification. He submitted his CV to the respondent in response to an advertisement for positions of printers. He attended for interview on 31 March, 2006. He felt that the interview went very well and that he had all the relevant requirements for the position. He was interviewed by Mr. G who acted as a consultant to the respondent organisation. At the end of the interview, Mr. G brought the complainant on a tour of the respondent’s factory. He then proceeded to ask the complainant ‘what’s wrong with your eye ?’ to which the complainant stated that he has only partial sight in his right eye and that it is a condition he has since birth. The complainant further stated he explained to Mr. G that it does not affect his ability to do the job as he has been working in the printing industry for the last 20 years. Mr G stated that the respondent would be in touch with him over the next number of days.
3.4 On 13 April, Mr. G sent an e-mail to the complainant in reply to the complainant’s query as to whether Mr. G had made a decision regarding the vacant printer positions as he had been offered a position with a different company. Mr. G stated ‘the printer positions are still being interviewed for with possibly the last one tomorrow (Friday) and then a final decision will be made on Wednesday of next week. You interviewed well with your credentials and background ideal for the position on offer. There are some concerns about your sight defect but this would possibly be resolved if you progressed to the medical stage.’ In the meantime, the complainant turned down another offer of employment as the printing post with the respondent was more preferable to him. In response to a further query by the complainant regarding his candidature, Mr. G informed the complainant on 19 April 2006 by e-mail that his application for employment was unsuccessful but that they would keep his CV on file should a suitable vacancy occur in the future. The complainant states that he was suitably qualified for the post and that the decision of Mr. G not to select him was influenced by the fact that he was visually impaired. The complainant submits that this constitutes discrimination of him on grounds of disability contrary to the Acts.
4. Summary of respondent’s case
4.1 The respondent states that they had 23 applicants for the positions of printers and selection was by way of competitive interview. 8 candidates were called for interview and 5 candidates were successful for the positions. The respondent states that Mr. G was consulting to Webprint at the material time, providing a range of services from technical advice on equipment commissioning to the screening of applicants for recruitment to positions within the company. Mr. G was tasked with screening the candidates, conducting first round interviews and making a recommendation to Mr. P as to which candidates should progress to second round interviews. Mr. P was the production manager with the respondent at the material time and he was also the hiring manager. The respondent maintains that Mr. G has in excess of 35 years experience in the web offset printing industry and has worked with companies in Ireland, UK and Australia. The respondent also states that the respondent’s business commenced with 2 employees in September 2005 and reached 60 employees by May 2006. In this regard, they were under a lot of pressure to recruit appropriate personnel and had a transfer of undertakings with the winding down of the Irish Examiner Ltd. at Academy Street, Cork. They maintain that it was a period of great transition for the organisation.
4.2 The respondent accepts that Mr. G made remarks regarding the complainant’s visual impairment but that it had no bearing on the fact he did not get offered the position of printer. They further state that Mr. G was acting as a consultant to them at the time and they do not condone his comments and it is not the policy of the company to make such comments. The respondent also stated that Mr. G was naive and open and they would not condone sending e-mails in relation to enquiries from candidates regarding their possible selection for positions. They state that the comments were inappropriate and apologised to the complainant on behalf of Mr. G for the comments being made.
4.3 The respondent rejects the assertion that it treated the complainant less favourably on grounds of his disability. They state that the company’s ideal candidate was required to have (i) web offset printing experience (ii) worked under the pressure of printing daily/weekly newspapers and (iii) been very involved in teamwork. The respondent asserts that the five candidates who were successful for the positions had substantial experience in this regard. They state that the complainant was not suitable in terms of his experience in web offset printing and working in a pressurised environment which were necessary requirements for the post in question. The respondent apologised to the complainant for the comment made by Mr. G in relation to his visual impairment but submits that the selection process was conducted in an objective fashion and that it yielded candidates who were the most suitable for the positions in question.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is whether Webprint Concepts Ltd. discriminated against the complainant on grounds of his disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, when it failed to recruit him to the position of printer following interview in March, 2006. In reaching my decision, I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 provides as follows:
" (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.”
This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his disability. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 When the burden of proof shifts to a respondent, there are a number of factors which should be taken into account in deciding if that burden has been discharged. Firstly, since the facts necessary to prove an explanation can only be in the possession of the respondent, the Tribunal should expect cogent evidence to discharge the burden of proof (Barton v Investec Henderson Crosthwaite Securities, 2003 IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others 2005 IRLR 258). In addition, the requirement to establish that there was no discrimination whatsoever means that the Tribunal 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 if their disability, to be less capable or less dependable than a person without a disability. The Tribunal 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 (Nevins, Murphy, Flood v Portroe Stevedores 2005 16 ELR 282). In Wong v Igen Ltd and others, Peter Gibson LJ considered the scope which should be ascribed to the notion of ‘no discrimination whatsoever’. He held that if the protected factor or characteristic is more than a ‘trivial influence’ in the impugned decision, a claim of discrimination will have been made out.
5.4 Section 15 (2) of the Acts in relation to vicarious liability provides, inter alia, “anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.” I am satisfied that the respondent can be held vicariously liable for the actions of Mr. G who was a consultant to the respondent organisation in the selection and recruitment process for the positions of printers at the material time, if he is found to have discriminated against the complainant on grounds of his disability.
5.5 The job specification for the position of printer stated ‘applicants should have basic skills in printing with preferably web or high quality sheet-fed experience. Ideally it would be an advantage if you have experience in national newspaper production and some knowledge of colour quality control.’ The complainant felt he performed well at interview and had the requisite qualifications and experience for the post in question. When he e-mailed the respondent to enquire about his candidature for the post, Mr G e-mailed the following response to him on 13 April 2006 ‘the printer positions are still being interviewed for with possibly the last one tomorrow (Friday) and then a final decision will be made on Wednesday of next week. You interviewed well with your credentials and background ideal for the position on offer. There are some concerns about your sight defect but this would possibly be resolved if you progressed to the medical stage.’ However, the reason given to the complainant for not been awarded the position of printer was his lack of experience in web offset printing. Mr. G was aware of the credentials of all candidates and when he sent the e-mail to the complainant he had interviewed 7 candidates with the last interview outstanding. When he sent the e-mail to the complainant, his concerns were regarding his sight defect and there was no mention of lack of experience in web offset printing in fact he states ‘you interviewed well with your credentials and background ideal for the position on offer’. I also note from the job specification that applicants should have basic skills in printing with preferably web or high quality sheet-fed experience; it does not state that web offset printing experience was essential for the post, although the respondent is relying on this experience and stating this is the reason the complainant was unsuccessful for the post. The respondent advised that Mr. G was retired and living in the UK and not in a position to attend and give evidence at the hearing. Mr. P who was the hiring manager at the material time is also no longer working with the respondent and similarly was not available to give evidence.
5.6 The respondent stated that step 1 in the selection procedure involved a review of all CV’s submitted and selection of candidates for first round interviews. Step 2 entailed first round interviews to access technical competence and experience and step 3 involved a medical assessment and second round interview. The respondent stated that the complainant did not progress to stage 3 of the selection procedure due to his lack of web offset printing experience. The respondent maintains that they did not retain copies of interview notes or marks awarded to candidates. However, I have noted from some of the CV’s submitted that there are notes relating to candidates performance at interview and marks awarded manually written on some of the CV’s. I also requested from the respondent a copy of the CV the complainant submitted but was advised that they did not retain a copy of same. Having examined the CV’s submitted, I am satisfied that 4 of the 5 successful candidates did fulfil the criteria regarding web offset printing experience and had substantial experience in this area. However, not all of these candidates had experience of working under the pressure of printing daily/weekly newspapers according to their CV’s which the respondent stated at 4.3 above was a requisite for the position in question.
5.7 In relation to the outstanding fifth successful candidate, he states in his CV that ‘I have been working in the print industry for the past six years and during this time I have undertaken various training courses to become a web offset printer.’ I find this statement quite broad and there is no further information in his CV with regard to what specific courses were undertaken, duration of same etc. However, this candidate had experience of working under the pressure of printing daily/weekly newspapers and been involved in teamwork. The complainant submitted that the job he held at the Irish Examiner on a 6 month fixed contract prior to applying for the printer post with the respondent was exactly the same job as he would be required to carry out at the respondent organisation. The respondent maintains that it was a similar post but that the technology used in the respondent organisation was more automated and more technologically advanced. The two representatives of the respondent organisation who attended the hearing were Mr. C, the financial controller and Mr. B, a human resource consultant to the respondent. They admitted they did not have an in-depth knowledge of the complexities of the printing industry. The fact Mr. G and Mr. P, who carried out the interviews and selected candidates, were no longer working with the respondent and therefore not in a position to attend and give evidence at the hearing regarding exactly what factors were taken into account in the decision making process means that I have to rely on hearsay evidence. I am satisfied, on balance, taking all of the evidence into consideration that Mr. G took into account the complainant’s visual impairment and this meant that the whole selection process was tainted with discrimination. Therefore, I am satisfied that the complainant has established a prima facie case of discrimination on the basis of the comment made by Mr. G stating there were concerns regarding the complainant’s eye defect and with regard to the fifth successful candidate as no tangible evidence was provided to me to demonstrate that he was more suitable than the complainant for the post in question.
5.8 On examination of the CV’s, I am of the view that 4 of the 5 successful candidates had substantial experience in the area of web offset printing. However, I feel that although the fifth successful candidate has stated that he had undertaken various training courses to become a web offset printer; the fact the complainant had 6 months experience in web offset printing during his time at the Irish Examiner must also be considered. The respondent also confirmed that they had a transfer of undertakings with the winding down of the Irish Examiner Ltd. at Academy Street, Cork and the post in question was similar to the work the complainant had carried out at the Irish Examiner Ltd. Given the above, I am not satisfied that the respondent has discharged the burden of proof that there was no discrimination against the complainant on the basis of his disability. Having regard to all of the evidence presented in this case, I find the evidence of the complainant more credible and compelling and feel that, on the balance of probabilities, the complainant was discriminated in the selection process and recruitment to the position of printer with the respondent because of his visual impairment.
6. Decision of the Equality Officer
6.1 I have completed my investigation of this complaint and make the following decision in accordance with section 79(6) of the EmploymentEquality Acts, 1998-2008. I find that –
(i) the complainant has established a prima facie case of discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 and 2008 and contrary to section 8 of those Acts, in relation to the interview process for the position of printer conducted by the respondent in March/April, 2006.
(ii) the respondent discriminated against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 and 2008 and contrary to section 8 of those Acts when it treated him less favourably than other candidates without a visual impairment.
6.2 I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2008 that the respondent pays the complainant the sum of €7,000 by way of compensation for the effects of the discriminatory treatment on him. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.
8 April, 2009