ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002694
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00003741-001 | 08/04/2016 |
Date of Adjudication Hearing: 14/12/2016
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 ] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
Parties | A Complainant | A Local Authority |
Complainant’s Submission and Presentation:
The Complainant states that he has been discriminated against by the Respondent, his employer, under Section 31(1) of the Employment Equality Act 1998 in that he was refused access to a panel for promotion based on his disability.
The Complainant has been employed by the Respondent since May 1994. The Complainant was appointed to a position of Acting Staff Officer Grade 5 in 2006. This was a temporary appointment pending the permanent filling of the post.
In September 2015 the Respondent invited applications for a competition to fill Staff Officer positions. As part of the application form, candidates are requested to confirm if they have a disability and if they are registered with any organisation for the disabled. The Complainant answered both of these questions in the affirmative. The interview form did not confirm the type of disability so this information was not confirmed to the interview panel in this case. The Complainant has a disability in that he has a visual impairment.
The Complainant attended a shortlisting interview in November 2015 and was awarded a score of 280 marks out of a possible 450.
Having been shortlisted the Complainant then attended for a final interview on the 15 December 2015. The Complainant stated that at the final interview the Chairperson of the interview panel commenced the interview by asking him where he lived and the next question was a statement that the Complainant had attended Rehab. The Complainant states the wording was ‘I see you went to Rehab. How did that go for you?” and the interview chairperson moved on and did not give him the opportunity to respond. For clarification purposes Rehab is a charity that champions the value of diversity and inclusion for people with a disability or disadvantage in their communities.
The Complainant was awarded a score of 330 out of a possible 500 marks at this final interview. The Complainants performance at final interview had fallen 18% from his original score in his first interview and he says this was directly contributed to the fact that the interview chair had rattled him by the way he asked this question and did not give him the opportunity to reply.
The Complainant states that this statement drew the attention of the two other interviewers to the Complainants disability and believes this had a direct negative effect on his performance at interview. The Complainant states that the other members of the interview board appeared to become very uncomfortable when the Chairperson made this comment.
On the 21 December 2015 the Complainant received confirmation he did not achieve a place on a panel of 12 candidates and this had the effect of removing the Complainant from the post he had held for 9 years.
The Complainant lodged his appeal on the 11 January 2016 and seven weeks after he lodged his appeal he was advised by the Director of Corporate Services that his appeal had not been upheld. It was noted that the Director of Corporate Services was “satisfied that you were treated similarly to all other candidates and in a manner absolutely consistent with established approaches.”
The Complainant was not placed on the panel and therefore was not appointed to a permanent Grade 5 position and had to leave his post which he held on a temporary basis for the past nine years. The Complainant was in receipt of an acting allowance for the nine years and this was removed when he removed back to a Grade 4 post. The Complainant experienced a substantial loss of earnings as a result. The Complainant has experienced a loss of earning of €2,569 per annum and his potential earnings would then have increased by a further €1,519 per annum after three years of service on the maximum of the scale. This brings the loss of earnings to €4,088 per annum. Having served a further three years on the maximum of the scale the Complainants salary would have increased by a further €1,518 per annum bringing his loss of earnings to €5,606 per annum.
The Complainant believes the he went from being judged an “excellent candidate” from his performance at the shortlisting interview to being judged a “satisfactory candidate” from his performance at the final interview and missed out by 9 points from being placed on the panel of successful candidates.
The Complainant confirmed that he has attended Rehab over 20 years ago to do a course there. The Complainant has worked for the Respondent for 21 years. The Complainant does not believe that his time with Rehab should have been raised at his interview as it was not relevant to his work history. The Complainant states that he was rattled on the basis that he attended Rehab and did not get the opportunity to explain it was due to his sight rather than the implied attendance for wrong doing for example drug usage.
The Complainant is of the belief that the Chairperson of the interview panel was unfair to him and it was completely due to his disability as that was the reason he attended Rehab to do training there.
The Complainant was the only candidate of 24 in total who was in this panel of interviewees who had a ticked disability on the application form. No other candidate who attended for interview for this competition was placed in the positon in which the Complainant found himself. The question as it was posed and the effect it had on the Complainant operated to the disadvantage of the Complainant as compared to other candidates who attended for interview and did not have a disability.
The Complainant stated that the Respondent had noted that the interview and performance at the same was solely based on the performance on the day therefore this rattled the Complainant and it negatively impacted on him.
It is noted by the Complainant that 5 to 6 people have since been removed from the interview panel to date since his interview and have been given full time appointments.
The Complainant is of the belief that by drawing attention to his disability at the commencement of the interview placed him at a disadvantage in relation to other candidate who do not have a disability and in particular not allowing him to answer this question was a key factor that caused him to score poorly in this interview where he scored 9 points less than the last person put on the panel.
Respondent’s Submission and Presentation:
The Respondent refutes the accusation of discrimination against the Complainant on the ground of disability.
The Respondent states that the Complainant was acting in the role for 9 years and that there is no automatic entitlement to the role and candidates have to go through competition.
The Respondent states that the Complainant’s total mark achieved at the final interview was 330. The lowest placed candidate of the 12 individuals placed on the panel achieved a total of 339 marks. The candidate who came first on the panel scored 440 marks.
It is the Respondents positon that the Complainant must establish that the question asked at interview in relation to the Complainants time at Rehab directly or indirectly raised an inference of discrimination.
The Respondent states that the Complainant did not detail the time spent at Rehab as a training programme. The Complainant was asked about his experience with Rehab as he had clearly outlined his experience as part of his work experience.
The Respondent states ‘it is expected that if an individual puts certain information on an application form that they wish, or at the very least expect, to have such information subjected to scrutiny of some kind during the interview.”
The Respondent stated that in accordance with their policy in relation to the marking and assessing of candidates, candidates will be assessed solely on their performance at interview and on the written statement which they have furnished.
The Respondent states that the interview lasted from 9.29am to 9.55am and in the context that a wide range of matters were covered in a relatively short space of time.
The Respondent states that ten other non-disabled candidates achieved lower points than the Complainant in the competition.
The Respondent states that it is for the Complainant to illustrate that there was a discriminatory act committed by the Respondent by referring to his self-declared experience with Rehab.
The Respondent states that the Complainant may not necessarily have gotten to the top of the panel to be appointed onto the grade. The Respondent noted that a panel placement is no guarantee of an appointment.
The Respondent noted that the normal practise was not to give the last page of the application form, which had reference to a disability or otherwise to the interview panel. On this occasion, the last page was given to the interview panel however this practice has since changed since January 2016 and it is no longer given to the interview panel.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Issues for Decision:
The Complainant is seeking for the Adjudicator to confirm that his complaint of discrimination based on his disability is well founded and that he was treated less favourably than the other candidates on the grounds of his disability.
Legislation involved and requirements of legislation:
Section 6(1) of the Employment Equality Act, 1998 provides:
“For the purposes of this Act, 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.
S. 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, civil status, religion, disability, race or a member of the traveller community.
Section 8 (1) of the Act provides:
“In relation to-
(a) Access to employment
(b) Conditions of employment
(c) Training or experience for or in relation to employment
(d) Promotion or re-grading, or
(e) Classification of posts,
an employer shall not discriminate against an employee or prospective employee….”
Decision:
The Complainant must establish primary facts upon which the claim of discrimination and the burden of proof passes to the Respondent.
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. In deciding on this complaint, therefore, 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. 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.
It should be noted that the Complainant highly commended the Respondent for how they have treated and supported the Complainant and his disability throughout his employment with the Respondent. The Complainant stated that this was the only time he ever felt unfairly treated due to his disability.
The Respondent had given the full application form to the interview panel which disclosed the fact that the Complainant had a disability. The Respondent states “in fact, the only information available to the interview board was that which was provided by the claimant on his application form and at interview”. The Complainant was obliged to inform of whether he had a disability of not and he was open and truthful in disclosing the same. Combined with the confirmation that he had a disability and the disclosure that the Complainant attended Rehab completing a Diploma there is a clear link to the fact the Complainant had a disability. On the basis it was brought to the attention of the interview panel in a manner which did not allow the Complainant to respond. This direct links to the Complainant performing poorly at the interview and not receiving his promotion. I do find that this establishes a prima facia case on behalf of the Complainant.
Secondly, the application form asked for both academic and professional qualifications in addition to work history. It is noted that the employment record on the application form:
“Give below, in date order, full particulars of all employment [including also any periods of unemployment] between the date of leaving school or college and the date of taking up your present position. No period between these dates should be left unaccounted.”
Whether the Complainant placed his experience with Rehab in either box was of little to no relevance as both would have been seen and reviewed by the interview panel. In addition the Complainant could not be seen to avoid the period as no period was allowed to be unaccounted for therefore the argument on behalf of the Respondent that the Complainant placed his education regarding Rehab in the wrong section is irrelevant.
Finally, the Complainant was deemed an exceptional candidate based on his screening interview however his score dropped 18% in terms of points allocated in his second interview. No viable evidence was presented to show how his answers received such a low deviated score between interviews. There was no evidence presented as to how those who scored better than him achieved these scores. Between the two interviews there is a significant deviation between scores for example experience [range and depth] was scored 130 in the short listing interview yet only reached 105 in the second interview. Knowledge, given the fact that the Complainant had worked in the role for 9 years was scored 125 in the short listing interview, with only 95 being allocated in the second interview, a deduction of 30 points. A direct inference can be taken from the marking scheme and the deviation of scores.
Based on the written and oral submissions this case was based on the candidate being the only candidate of the 24 who interviewed who stated he had a disability. The Complainant was asked via the application form to disclose whether he had a disability for accommodation purposes for the interview. This page of the interview form is now no longer given to the interview panel since January 2016 however the case did not hinge on this fact.
The pivotal point of the case was the questioning line by the chairperson of the interview board regarding the Complainant’s time in an organisation over 20 years ago recognised to be associated with people with disability. The Complainant stated that he was asked “I see you went to Rehab – how did that go for you?” I am satisfied that from the evidence given the Complainant was not given the opportunity to respond to the question and informed that he was ‘rattled’ as a result and he also felt that the other interview panel members were visibly uncomfortable as a result of this question and how it was asked and moved on from without giving him an opportunity to answer it.
The direct inference in this line of questioning coupled with not giving the candidate the opportunity to answer including the Complainants perceived reaction of the other members of the interview panel can only be construed as direct discrimination.
Based on the evidence presented I conclude that the Complainant was disadvantaged at the interview for the opportunity for promotion.
The Complainant has presented evidence through his 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.
I have investigated the above complaints and make the following decision in accordance with the relevant sections of the Acts set out above and the following are my conclusions:
I find that the Complainant was discriminated against on the grounds of disability in relation to promotion or regrading.
I am satisfied that the appropriate form of redress is to appoint the Complainant to the next Grade 5 position from the panel that comes available on this panel as where the employee would have come in the panel is unknown based on his performance if he was not disadvantaged due to the behaviour at this interview.
Dated: 04 April 2017
A Local Authority