SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
PUBLIC APPOINTMENTS SERVICE
(REPRESENTED BY CHIEF STATE SOLICITORS OFFICE)
- AND -
Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Mr Shanahan
1. Appeal of Adjudication Officer's Decision.
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2011 on 20th May, 2016. A Labour Court hearing took place on 19th October, 2016.
Details of the Appeal
As is the normal practice of this Court, Mr Flynn is referred to in the within determination as the Complainant and the Public Appointments Service (“PAS”) is referred to as the Respondent. This is the Complainant’s appeal from a decision of an Adjudication Officer (DEC-E2016-065) under the Employment Equality Act 1998 dated 19 April 2016. The Notice of Appeal was received by the Court on 20 May 2016. The Complainant was represented at the appeal by his uncle, Mr Greg Allen and the Respondent by Mr Glen Gibbons BL, instructed by the Chief State Solicitor’s Office.
The Adjudication Officer upheld the Complainant’s complaint to the effect that he had been discriminated against on the grounds of his disability and awarded him €5,000.00 for the effects of the discrimination. She also ordered the Respondent to make certain amendments to a specified information booklet issued to certain examination candidates. The Complainant’s representative expressly informed the Court that the appeal was not brought in relation to quantum only. This is consistent with the comprehensive statement of the grounds of appeal stated by the Complainant in his Notice of Appeal furnished to the Court.
At the outset of the hearing, Mr Allen referred to himself as a ‘McKenzie friend’ to the Complainant. The term ‘McKenzie friend’ is used to refer to a person who is attending court for the purposes only of taking notes or of making quiet suggestions to, or of assisting a lay litigant during the course of a hearing, but who is not qualified as a solicitor or barrister, and who does not act as an advocate at the hearing. (SeeMcKenzie v McKenzie 3 All ER 1034.) It is clearly the case that Mr Allen was present to advocate in the appeal on behalf of the Complainant. Mr Allen also informed the Court that, although he was not a practising lawyer, he had in fact been called to the Bar some years previously. It follows that Mr Allen was not a ‘McKenzie friend’ for the purposes of the within appeal.
The Court heard evidence from the following witnesses: the Complainant himself; and, on behalf of the Respondent, from Ms Aoife Lyons, a highly qualified Occupational Psychologist employed by the Respondent, along with Ms Fiona Tierney, the Respondent’s CEO. The Complainant’s mother, Ms Pamela Flynn was also proffered as a witness on his behalf, however, the Court declined to take evidence from her as she was not in a position to add to the Complainant’s own evidence of his dealings with the Respondent.
There is no dispute between the parties in relation to the principal facts. These can, therefore, be set out succinctly as follows. The Complainant suffers from a disability: Attention Deficit Disorder or ADD. He was diagnosed as having ADD at the age of 21 years.
PAS advertised a competition for Clerical Officer positions in the Civil Service with a closing date of 3 July 2014. It received approximately 28,000 applications, including the Complainant’s in response to that advertisement.
When the Complainant submitted his application in response to the advertisement for the Clerical Officer competition, he indicated (by ticking a box on the form)that he has a disability and identified that disability as ADD. In reply to the question on the form regarding whether he required any special accommodation, he requested that he be allowed extra time to complete the required assessments and be permitted to avail himself of breaks as necessary. PAS then wrote to the Complainant and requested him to provide a letter from an appropriate medical practitioner confirming the Complainant’s disability. The Complainant thereafter furnished PAS with a copy of a letter from his consultant, Professor Michael Fitzgerald.
The letter was dated 8 February 2014 and had originally been provided by the consultant for purposes related to a course of education the Complainant had been undertaking at a university. The letter was not furnished to the Complainant specifically in the context of his application to PAS. It is appropriate to reproduce the text of the body of this letter (personal details redacted) at this juncture as the Respondent relies on the general nature of the letter in support of certain matters raised in its submission to the Court:
“TO WHOM IT MAY CONCERN
Re: [Name] D.O.B. [DD.MM.YY]
- This is to state that I examined [C.F.] and he suffers from a disability called Attention Deficit Disorder. This has seriously interfered with his engagement with the curriculum and is a very significant disability. Even though he was in attendance at the University during the academic year 2010/2011 he was unfit to attend because of his disability.”
Stage 1 comprised: (i) an assessment questionnaire to be completed within 90 minutes during the period 11 to 20 July 2014; and (ii) a series of 3 online aptitude tests to be completed during the period 24 to 31 July 2014. A candidate could complete (i) and (ii) at a time and location convenient to them (e.g. from his or her home) during the relevant periods. It follows that Stage 1 is unsupervised. The Complainant qualified from Stage 1 and was placed 4,223rdoverall. (11,510 candidates reached the qualifying standard on all elements of Stage 1.)
Following his successful completion of Stage 1 of the application process, the Complainant wrote to PAS (by email dated 8 September 2014) enquiring as to what “adjustments were made to each test to take account of [his] disability”. He also requested PAS to “Let [him] have a copy of any reports which shows [sic] how these adjustments have been made.”
PAS replied by email on the following day stating:
- “I can confirm that your letter, including your medical report, was received. The advice from our psychologists, who examined your report, was that should you be invited to supervised tests, you will be accommodated in a small group setting.”
Although not explicitly stated in PAS’s replying email, it is clear – and accepted by both Parties – that no accommodation was made by PAS for the Complainant in respect of Stage 1.
The Complainant, it appears, wrote again to PAS following receipt of their email of 9 September 2014. The Court was not furnished with a copy of the Complainant’s correspondence on this occasion. The material parts of PAS’s replying letter of 22 October 2014 are reproduced below:
… Your request has been dealt with as a formal review under Section 7 of the Commission for Public Service Appointments’Code of Practice for appointments to positions in the Civil and Public Service….
In relation to your query regarding possible accommodations made in respect of your disability, I can confirm that the report you forwarded was reviewed by our psychologists. It was determined that no special accommodations were necessary to be made for you at your Stage 1 tests. However, if invited to Stage 2, which generally involves sitting the tests along with a large group of others, consideration would be given to facilitating you taking these tests within a small group setting.”
The following are relevant extracts from the Complainant’s email of 28 October 2014:
- “… I have been diagnosed with a disability called Attention Deficit Disorder (ADD). This is a recognised disability by the Department of Education and also all third level colleges. While every case must be judged on its merit, in general, and in line with best practice, someone with ADD is entitled to extra time during an exam. The recommended additional time is 10 minutes per hour pro rata. Taking the exam in small groups is also recommended.
My disability is such that it takes me a bit longer to process the question and formulate the answer, which is why I need extra time. Others are not faced with the same time constraints.
I was not given ‘equality of opportunity’ when I was expected to complete an exam in the same time frame [sic] given to everyone else regardless of ability/disability.
Best Practice [sic] for someone with ADD is additional time (10 minutes per hour is recommended) and small groups. In Stage 1 the small group was not an issue as I made sure to take the exam at home in a quite [sic] room, but again some accommodations should have been made for the additional recommended time.”
- “4. In particular, I considered very carefully the correspondence from Mr. Flynn, along with the formal review carried out by Ms Emer Grenville. Ms. Grenville is a very experienced officer in the conduct of such matters. I am satisfied from my careful consideration of her review and from my examination of the documentation available to me that she carried out the review in a fair and open manner. I also note that Ms. Grenville conducted a recheck of Mr. Flynn’s scores as part of her review.
5. I also met and spoke with a psychologist in PAS, Ms Sarah Heywood. Ms Heywood explained that no special provision is currently made available during the competitive process by PAS for persons with Attention Deficit Disorder, for psychometric tests of this type. Ms. Heywood could find no evidence in the psychological literature to suggest that somebody with Attention Deficit Disorder would be at a disadvantage while undertaking such psychometric tests.”
The Complainant’s Submission
The nub of the Complainant’s case – as expressed in his written submission to the Court – is that “[his] disability was ignored for the first stage of the recruitment process, which was the online exam”. The Complainant goes on to state that “[he has] no doubt that if accommodations were provided [he] would have acquired a higher placing at stage 1 of the exam.”
The Complainant’s consistent use of the word “exam”, in framing his case, is of significance because the case he put forward to the Court rests on the assumption that the four tests he undertook in the course of completing Part I of the PAS process equate to an academic examination undertaken in a school or college setting. This is confirmed by the fact that the Complainant submitted the following documents to the Court: “S11/2000 - Report of the Expert Advisory Group on Certificate Examinations in Relation to Arrangements for the Assessment of Candidates with Special Needs in the Certificate Examinations”; and “Attention Deficit Hyperactivity Disorder - ADHD and Education: A Resource for Teachers.” As mentioned previously in this determination, the Complainant stated the following in his email of 28 October 2014 to the PAS: “Best Practice [sic] for someone with ADD is additional time (10 minutes per hour is recommended) and small groups. In Stage 1 the small group was not an issue as I made sure to take the exam at home in a quite [sic] room, but again some accommodations should have been made for the additional recommended time.” The Court was also furnished with a printout of information from the State Examination Commission’s website in relation to reasonable accommodations for candidates for State examinations.
The Complainant did specifically request, as part of his application process, that he be allowed extra time and breaks while undertaking the assessments set by PAS, having regard to his disability. He complains that he was not afforded this accommodation at Stage 1. He submits that PAS’s failure to make these “accommodations” as requested by him meant that “[he] was expected to complete an exam in the same time frame [sic] given to everyone else regardless of ability/disability”. In short, his complaint is that not only was not afforded the reasonable accommodation which he believes PAS was obliged to afford him pursuant to the Act, he was, in his own words “treated as if no disability exists”, at least as far as Stage 1 of the selection process is concerned.
The Complainant raises a further, connected issue regarding certain wording used in PAS’s booklet setting out guidelines for candidates. The booklet in question provides as follows in relation to the initial Assessment Questionnaire that the candidates must complete:
- “You will have up to 90 minutes to complete the Assessment Questionnaire. Once you start the Assessment Questionnaire you must complete it within that time. You may choose any 90 minute period to answer and submit the Questionnaire during the timeframe allocated to you. You are strongly advised to complete the Questionnaire in one sitting. Give yourself sufficient time and do no wait until the final hours of the testing deadline to complete the Questionnaire.”
- “These tests should be completed in one sitting. You should note that these are timed tests and they will automatically finish after the allocated time has elapsed … It is recommended that you work quickly and accurately through the tests.”
This issue was specifically addressed by the Adjudication Officer in her decision. She directed PAS to amend their information booklet to make it abundantly clear that the various components of Stage 1 can be completed over a number of days and that the candidates can, therefore, take breaks between the different components of Stage 1. In his submission to the Court, the Complainant indicated his dissatisfaction with this element of the Adjudication Officer’s decision:
- “While amending the booklet to advise every candidate (whether with a disability or not) that he/she may take breaks between exams is welcome, it will still mean that a person with ADD is treated in the same manner as a person without a disability. Still no ‘reasonable accommodations’ have been recommended for someone with my disability for stage 1 of the exam. So, after [the Adjudication Officer] has found in my favour, this order to PAS does not help someone with my disability. In fact, if anything it puts me at a further disadvantage, as this will be available to all candidates whether a disability exists or not.”
The Respondent’s Submission
The Respondent informed the Court that 81 candidates for the Clerical Officer competition in question declared they had a special need or needs. The PAS sought a psychologist’s/medical report, as appropriate, from each of those candidates. The reports received by PAS were then reviewed by an Occupational Psychologist employed by it and confirmed by a second Occupational Psychologist. PAS thereafter arranged for reasonable accommodation where this was appropriate having regard to the advices of its Occupational Psychologists. In the case of the Complainant, PAS did not deem it necessary to provide him with any accommodation at Stage 1 having regard to the psychologist’s report he submitted as part of his application, PAS’s own Occupational Psychologists’ review of that report and its accumulated expertise in dealing with candidates who present with ADD/ADHD.
In its written submission, PAS cites the guidelines issued by the Public Service Commission of Canada, an extensive user of psychometric testing in the context of recruitment:
- “Keep in mind that accommodations are determined on a case by case basis and their appropriateness will depend on the nature and extent of the individual’s functional limitations, the assessment tool to be used and the qualification to be assessed.”
- “An application for additional time cannot be granted as additional time is not an accommodation that can be sanctioned in its own right under the RACE scheme. Additional time is only available to students who have a visual or hearing impairment; who have been sanctioned the use of a scribe; or those who have been granted the use of a mechanical aide but who are unable to make use of these mechanical aides under examination conditions.”
In summary of their position, PAS advances the following reasons for its decision not to acceded to the Complainant’s request for extra time at Stage 1:
•“The very short nature of these tests and the very generous time allowances of [sic] the Questionnaire,
•While candidates were advised to take the tests in one sitting, the very generous suggested time allocation of 90 minutes for the three aptitude tests would allow breaks to be taken should they be required (the tests themselves last 38 minutes in total). In fact, each test was accessed by clicking on a separate link and candidates could take as long as they wanted between the tests, so long as the tests were completed within the testing window of 8 days between 24thand 31stJuly 2014;
•[The Complainant] had control over the environment in which he took the unsupervised tests, i.e. the ability [sic] to choose exactly where and when to take the tests to ensure no distractions, etc.
•No information about extra time and no request for extra time in the medical report.
In respect of that element of the Complainant’s submission regarding the perceived shortcomings in PAS’s information booklet to candidates , counsel for PAS submits this ground of complaint “cannot base a claim under section 9 and it would becontra legemto do so. The WRC erred in this respect.”
Further, PAS submits that there is an explanation – based on its experience of candidates frequently not completing the full series of online tests – for the inclusion of the impugned direction that “test should be completed in one sitting”. PAS informed the Court that it is often the case that candidates who do not complete tests in one sitting may forget to return to complete the outstanding components.
By way of illustration, PAS gives the example of a recruitment campaign it ran for Firefighters: 7,200 candidates were asked to complete two sets of tests; 1,184 candidates completed only one element of the aptitude tests in that competition. Candidates who do not complete all elements of an application process are deemed to have withdrawn from the process; in order to limit the risk of this happening, PAS encourages candidates to complete tests in one sitting. PAS submits that the direction included in its booklet should not be construed as meaning that candidates are not permitted to take a break between individual components of a series of aptitude tests. However, it concedes that this latter message is not explicitly stated in its booklet for candidates.
Relevant Legal Issues
De Novo Appeal
As the Court noted earlier in this determination, the Complainant succeeded in his claim at first instance before the Adjudication Officer who awarded him €5,000.00 in compensation for the effects of the discrimination he was found to have suffered as a consequence of PAS’s failure to make the reasonable accommodation for the Complainant, which in her learned opinion, it was obliged under the Act to provide. Nevertheless, the Complainant appealed from the favourable decision of the Adjudication Officer (DEC-E2016-065) to this Court as he was not “satisfied with her recommendations”, (to use his own words). This Court considers all matters coming before it on appeal on ade novobasis. In other words, this Court is not a forum the purpose of which is to merely review the findings and decisions of an inferior tribunal: this Court considers all matters of fact and law encompassed in any particular appeal afresh. Clarke J of the Supreme Court explained with commendable clarity the principal characteristics of a de novo appeal in his judgment inFitzgibbon v Law Society IESC 48:
- “4.1 Whatever may be the merits of the continuing use of Latin phrases, I am not sure that there is an exact translation of the term "de novo" which conveys the precise type of appeal with which I am now concerned. That term has a sufficient usage so as to make it convenient to continue to rely on it. While the phrase "full re-hearing" may convey the extent of such appeals the term "re-hearing" can have different meanings.
4.2 It seems to me that the critical characteristics of a de novo appeal are two fold. First, the decision taken by the first instance body against whose decision an appeal is brought is wholly irrelevant. Second, the appeal body is required to come to its own conclusions on the evidence and materials properly available to it. The evidence and materials which were properly before the first instance body are not automatically properly before the appeal body. It seems to me that, by defining an appeal as a de novo appeal, any legally effective instrument necessarily carries with it those two requirements.
4.3 However, the matter does not end there. It is sometimes argued that, by providing for a de novo appeal, what happened at first instance becomes entirely irrelevant and, indeed, inadmissible. That is not necessarily the case. First, it is important to recognise that the process at first instance may narrow the issues which truly remain alive in whatever adjudicative proceedings are under consideration. To take a simple example from the appellate structure of the courts, there is available what is in substance a de novo appeal to the High Court from almost all civil decisions of the Circuit Court. The High Court judge considers the case afresh on the basis of the evidence presented on the appeal and without attaching any weight to the decision made by the Circuit judge. However, what happened in the Circuit Court is not, in those circumstances, necessarily entirely irrelevant. The pleadings which were exchanged pre-trial in the Circuit Court may well have narrowed the issues between the parties so that, at least in the absence of leave to amend, the issues remain thus narrowed on any appeal. An appeal may not, by its terms, extend to the entirety of the decision made at first instance so that, in the example of an appeal from the Circuit Court to the High Court, the appeal may be brought only against the quantum of an award of damages made by a Circuit judge and not against that judge's finding on liability.
4.4 Second, and apart from such matters of form and process, evidence given in the first instance proceedings will not, necessarily, be entirely irrelevant to the process on appeal. It seems to me that the default position, in the absence of any specific rule to the contrary, must be that, in the case of a de novo appeal, it remains for the parties to again present to the appellate body whatever evidence or materials may be considered necessary for their case. Likewise, if, and to the extent that, the process may be inquisitorial, then, again in the absence of rules to the contrary, the inquisitorial process must start afresh before the appellate body.
4.5 However, there are obvious exceptions to that position even in the absence of specific rules. First, it is always open to a party to question the credibility of an account being given or a position being taken on an appeal by reference to evidence given or a position taken at first instance. Just as a previous inconsistent account can always be put to a witness in court proceedings, so also can a previous inconsistent account given at first instance be put to a witness at a de novo appeal hearing for the purposes of testing the credibility of any new account given. It will, of course, be a matter for the appellate body to form its own judgment on the credibility of the new account in the light of the extent to which any difference may be established between the account given to that appellate body and the account given to the first instance body and also having regard to any explanation given for any change of position.
4.6 Likewise, it is always possible to place before any adjudicative body evidence of previous admissions made by any party against whom an adverse finding on appeal might be made. In the law of evidence as applied in the courts, previous admissions amount to a well recognised exception to the hearsay rule. It seems to me that the default position, in the absence to any rule to the contrary, must be that an admission, made by a party at a first instance hearing or otherwise made during the first instance process, can be the subject of evidence at a de novo appeal. It is not that the party concerned is, necessarily, bound by an admission previously made. It is, on a de novo appeal, a matter for the appellate body to make its own mind up based on the evidence and materials before it. However, just as an admission made by a party against its own interest outside the context of hearings altogether can be the subject of evidence, so also can a similar admission made at first instance be the subject of evidence. The weight to be attached to that evidence in the overall assessment of the issues before the appeal body will, of course, be a matter for it.
4.7 In summary, therefore, it seems to me that the use of the term "de novo appeal" or similar terminology, carries with it a requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the first instance body against whom the appeal lies.
4.8 In addition, and in the absence of any specific rules to the contrary, the default position will be that it will be necessary that all materials on which the appellate body is to reach its adjudication are properly re-presented to that body in whatever form may be appropriate to the type of proceedings concerned. Where the proceedings involve oral evidence, then witnesses will have to be called again. Where the proceedings involve enquiries by the decision maker then those enquiries will have to be made afresh.
4.9 However, even in the absence of specific rules, that latter proposition is subject to some qualification. The process at first instance may have reduced the scope of issues which are properly before the appeal body. Likewise, that scope may be influenced by the terms of any appeal brought. Furthermore, there may be circumstances, such as those which I have identified, where statements made, evidence given or positions adopted at the first instance hearing may, in themselves, be properly admissible as part of the appellate process.”
Requirement on Complainant to Make Out a Prima Facie Case
Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:
- “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.”
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
- “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
Obligation on Employer to Provide Reasonable Accommodation
Section 16(3) of the Act provides:
- “(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s business, and
(iii) the possibility of obtaining public funding or other assistance.”
- “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull I.R.L.R. 60).
InMarie Daly v Nano Nagle School IEHC 785, the High Court recently affirmed the consistent construction of section 16 of the Act in the determinations of this Court and this Court’s interpretation of the scope of the obligation placed by section 16 of the Act on an employer to consider what reasonable accommodation can be made for an employee with a disability within the meaning of the Act.
Findings and Conclusions
It is not disputed between the Parties that the Complainant informed the Respondent that he had ADD and that ADD is a recognised disability. The Court accepts that the Complainant made a bona fide advance request to PAS to be permitted additional time to complete the various components to of the selection process in the competition it was tasked with running for the recruitment of Clerical Officers in 2014. The Court accepts PAS’s submission that the Complainant’s request in this regard was not supported by any specific medical or other justification
The Court is of the view that the Complainant has failed to make out aprima faciecase of discrimination in the circumstances that arose in 2014. He has not established to the Court’s satisfaction that he was in any way disadvantaged by the Respondent’s failure to accede to his specific requests for additional time and breaks at Stage 1. The Court arrives at this conclusion having very carefully considered the nature of the on-line Questionnaire and aptitude tests that compromised Stage 1 and the timeframe allowed for candidates to complete the relevant tasks.
In any event, had the Complainant succeeded in making out a prima facie case, the evidential burden of proof would have shifted to the Respondent to show that it had not failed in its obligations under the Act to the Complainant. It is clear to the Court from the evidence adduced in the course of the hearing that PAS has significant experience in dealing with candidates who present with a disability or disabilities and in making appropriate reasonable accommodation for those candidates in the course of its recruitment and selection campaigns. In the case of the Complainant, PAS relied on its internal expert advices and relevant reputable international best practice in deciding that there was no requirement on it to make any reasonable accommodation for him in the context of Stage 1 of the competition for which he had applied in 2014. The Court finds the evidence proffered by the Respondent for its decision in this regard vis-�-vis the Complainant’s specific requests to be cogent and convincing and in particular having regard to the specific assessment tools used by it in Stage 1 of the process.
The Court agrees with the concerns raised by the Complainant regarding certain wording used in the Respondent’s guidelines for candidates. However, the Court does not accept the reasoning advanced by the Complainant in his criticism of the Adjudication Officer’s direction to PAS to amend the booklet concerned. This criticism is based on a fundamental misunderstanding of the rationale for the requirement imposed on employers and others by the Act to make reasonable accommodation for persons with a disability. The Court fully endorses – and for the avoidance of doubt – repeats the direction given by the Adjudication Officer in this regard and so directs the Respondent.
The appeal fails. As stated previously, all matters of fact and law fell to be determined afresh by the Courtde novoon this appeal. The Court finds that the complaint brought by the Complainant herein under the Act of 1998 is not well-founded as the Complainant has failed to make out aprima faciecase of discrimination contrary to the Act. It follows that the decision of the Adjudication Officer (other than the element of her decision that directed the Respondent to make certain amendments to its written guidelines for candidates) - including the award of compensation therein - is set aside in full.
The Court so determines.
Signed on behalf of the Labour Court
7th December 2016______________________
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.