EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-157
A Laboratory Employee
A Food Production Company
(represented by IBEC)
Date: 15 December 2016
1. The Claim
1.1 This claim concerns a claim by the Complainant that she was unsuccessful in securing employment with the Company (hereinafter the “Respondent”) as a result of her having the condition of Epilepsy. The Complainant claims that having progressed through two rounds of interviews and having provided referees, she was requested to attend for a Medical and it was the medical report following this examination submitted to the Company which disclosed her medical condition. This resulted in the Complainant being unsuccessful in her application of employment contrary to Section 6(2) of Employment Equality Acts 1998 - 2015 (hereinafter the “Acts”).
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 12th August 2015 under the Acts.
1.3 In accordance with her powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.
1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 28th October 2016.
1.5 The Complainant and the Respondent attended the hearing. The Respondent was represented by IBEC. The Complainant was not represented.
1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.
2. Complainant’s Submission
2.1 The Complainant stated that following two rounds of interviews and the provision of referees, she complied with the Respondent’s request to attend for a pre-employment medical.
2.2 The Complainant stated that she suspected that she was unsuccessful in her application to be as a result of her having Epilepsy. She claimed that this was disclosed in the report submitted to the Company following her medical.
2.3 The Complainant stated that she had corresponded to the HR Department of the Respondent seeking feedback on the outcome and has received no response.
2.4 The Complainant is of the belief that she was qualified for the role and that the Respondent did not try to reasonably accommodate her based on her Epilepsy and this is the reason she was unsuccessful in securing the role.
3. Respondent’s Submission
3.1 The Respondent states that the Complainant attended for interview on 11th July 2014 and was informed on 28th August 2014 that she had been successfully placed on the Laboratory Technician Panel. It was explained to her that should a requirement for a Temporary Laboratory Technician arise she would be contacted and would be required to attend a second interview and that the Company would also conduct reference checks and a pre-employment medical.
3.2 The Respondent claims that they contacted the Complainant on 14th May 2015 to invite her to a second interview.
3.3 The Respondent claims that the Complainant confirmed her attendance on 16th May 2015 and provided an updated CV. At this point the Complainant also provided her references and educational qualifications.
3.4 The Respondent states that the Complainant attended for a second interview on 22nd May 2015.
3.5 The Respondent states that on 29th May 2015 the Respondent contacted the Complainant seeking the names of the two references and requesting the Complainant make arrangements to attend for a pre-employment medical with the Company occupational health physician.
3.6 The Respondent states that on 5th June 2015 they commended their reference checks and they were able to contact a former supervisor in Former Employer A. This reference check fell below the expectation and requirements of the Respondent. The reference check classifies the Complainant as falling below standard and not suitable for the role for which she was being considered.
3.7 On 8th June 2015, having discussed the poor reference within the HR department, the Respondent sought a second reference. A reference check was carried out with a Manager in former Employer B. The reference check classified the Complainants work as being standard. The Respondent states that as they were seeking high performing candidate this reference fell below the expectations and requirements.
3.8 The Respondent added that there were approximately 15 candidates at the reference check stage of the process at this point.
3.9 On 17th June 2015, the Occupational Health Physician issued the Complainant’s pre-employment medical certificate stating that she was fit for duties with certain recommendations and precautions in connection with what was classed as a non-work-related medical condition.
3.10 On 22nd June 2015 the Complainant was advised that she was not successful in her application for the role.
3.11 The Respondent presented interview notes from both interviews with the Complainant and both reference check forms from the Complainant’s previous employers to the day of the hearing.
3.12 The Respondent stated that they received an email on 23rd June 2015 from the Complainant asking for feedback on her application. There were statements in this email and the Respondent felt that there was no need to reply to the email as it was a statement. The Respondent expected the Complainant to call for feedback. The Respondent did not follow up with the Complainant as it was a very busy period in the Company.
4. Findings And Conclusions
4.1 In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.
4.2 Section 85 [A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination.
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.
4.3 Section 6(1) of the Acts provides:
“Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”, one person is treated less favourably than another is, has been or would be treated.
Section 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, age, civil status, religion, disability, race or a member of the traveller community.
4.4 In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. The Complainant has presented evidence through written and oral submissions which constitute a prima facie case and it is the opinion of this Adjudicator that the Complainant has established the burden of proof in regards to his complaint.
4.5 It is the Adjudicator’s belief that the Respondent has established that it was not the Complainant’s disability but rather her poor references that led to her being unsuccessful in her application for the role. The Respondent received the first reference for the Complainant, which it deemed to be unacceptable. In the interest of fairness, the Respondent checked a second reference for the Complainant which was classed as standard. The Respondent indicated that they seek high performing candidates and neither of the Complainant’s references indicated towards this. The Respondent noted that the other candidates in the selection process had exemplary references.
4.6 The Complainant stated that she did not know the references received were not acceptable until the oral hearing of the WRC. The Complainant stated at the hearing that she feels that had she received feedback from the Respondent it would have clarified the situation for her. This Adjudicator believes that the Complainant did not receive a satisfactory response from the Respondent regarding why her application was unsuccessful and that led her to proceed down this route.
5.1 Section 85 [A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination. In accordance with the above mentioned legislation I conclude and issue the following decision that the Complainant has established a prima facie case.
5.2 I find that the Complainant was not discriminated against based on her medical condition contrary to Section 6(2) of the Employment Equality Acts 1998 and 2015.