FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : OFFALY PERSONAL ASSISTANT SERVICES LIMITED (REPRESENTED BY J. D. SCANLON & CO SOLICITORS) - AND - COLM MC NAMEE DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No: ADJ-00004761.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 10 May 2018 and 23 August 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Offaly Personal Services Limited against the Decision of an Adjudication Officer ADJ-00004761 in a claim made by Mr Colm McNamee of discrimination on the grounds of disability. He claimed that he suffered discrimination on the ground of disability in relation to access of employment within the meaning of section 6(2)(g) of the Employment Equality Acts 1998-2015 (the Acts).
For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Colm McNamee will be referred to as “the Complainant” and Offaly Personal Services Limited will be referred to as “the Respondent”.
The Adjudication Officer found in favour of the Complainant’s claim and awarded the sum of €8,000 in compensation for the effects of the discrimination. The Adjudication Officer made further orders.
The Complainant referred his case to the Workplace Relations Commission on 14thAugust 2016. A hearing was held on 8thMarch 2017. The Adjudication Officer issued his decision on 12thJune 2017. On 20thJuly 2017 the Respondent appealed the Adjudication Officer’s Decision. The appeal came before the Court on 10thMay 2018 and 23rdAugust 2018.
Background
The Respondent is a not-for-profit organisation which provides a personal assistance service to persons with physical and/or sensory disability throughout the counties of Laois and Offaly. It is funded by the HSE. It embraces independent living, and clients are supported to make their own choices and to enjoy life to the fullest. It provides advice and acts as a consultancy organisation, working always towards enabling people with disabilities to be equal to everyone else in society. The service works in conjunction with many centres for independent living throughout the State.
Summary of the Complainant's Case/His Evidence to the Court
On 4th March 2016 the Complainant applied for an advertised position as a Community Employment Supervisor with the Respondent. In hiscurriculum vitae(CV)he disclosed that he is Dyslexic. By letter 11th March 2016 the Respondent informed him that he had been unsuccessful in his application for the position, and he had not been shortlisted for interview"due to the large number of applicants with sector specific knowledge and experience".
The Complainant stated that in addition to being Dyslexic, he is also Autistic (he was diagnosed with Asperger's Syndrome in 2013) and as such has a social deficiency.
The Complainant, who was unrepresented, submitted that the Respondent’s application process for the CE Supervisor position in March 2016 was weighted against persons with disabilities.
The Complainant stated that it came as a shock to him not to be shortlisted as he considered himself to be a near perfect match for the role due to his extensive involvement with Community Employment which began in 1996, when at the age of 22 he became the youngest Supervisor in the country. Furthermore, he has been involved in continuing professional development. This was outlined in his cover letter and CV.
The Complainant queried the reasons why he was unsuccessful with the Respondent on 18th March 2016. On 22nd March 2016 Mr Enda Egan, the Respondent’s CEO informed him that the task of deciding on the shortlist had been split between himself and the Financial Controller, who was only in the position a short period. Mr Egan told him that a mistake had been made in the marking of his application, resulting in a substantial number of marks not being allocated to his final score. This resulted in his non-selection for interview. The Respondent stated,"that he had not seen theC.V.and that the mistake had been solely that of the Financial Controller". Mr Egan apologised for the mistake and offered the Complainant a meeting with both himself and the Financial Controller to discuss the situation. However, Mr Egan informed the Complainant that the Community Employment Supervisor's position had been offered to the successful candidate on the same day that the interviews had taken place (16th March 2016) and that that person had accepted the offer. The Complainant declined the offer of a meeting, but thanked Mr Egan for it and complimented him on his service recovery approach.
The Complainant said that following his telephone conversation with Mr Egan, a colleague informed him of a connection between the Chairperson of his then current employer (Ms W) who was aware of his disability and with whom he had an acrimonious relationship, and the Respondent’s Chairperson (Ms G), he became suspicious and decided to check the veracity of the reasons he had been given for his non-selection.
The Complainant submitted that the Respondent’s lack of transparency and consistency in the selection process prompted him to request information under the Data Protection Acts 1988 and 2003 and subsequently to make a complaint to the Workplace Relations Commission for adjudication on what he now viewed as an infringement of his right to access employment.
The Complainant stated that the Respondent failed to award him correct marks for his level 8 honours degree when it scored him 15 points rather than the 20 he should have received; he only got half the marks for his knowledge of ILPs (10 rather than 20); he was given no marks for his European Computer Driving Licence (ECDL) (8 points) and while employment placement is an integral function of a CE Supervisor, he was allocated 5 points rather than the 20 he should have got for his 13 years of experience in the area. Finally, the Complainant highlighted his involvement with community development in both his cover letter and in his personal statement at the end of his CV, however he was awarded no points under this heading.
The Complainant cited all 40 applicants as comparators, including two candidates who were successfully ranked and were subsequently offered the position.
In support of his contention, that the Respondent, whether wittingly or not, had discriminated against him, the Complainant citedDe Buitleir v Revenue Commissioners,DEC-E2011-107, where an Equality Officer held: -
"Consequently,the Equality Tribunal will not normally look behindadecision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result"
In the case ofA Technology Company v A WorkerEDA0714, theLabour Court stated: -
- "[A] person withadisability may suffer discrimination not because they are disabled, per se, butbecause they are perceived, because of their disability, to be less capable or less dependable thanaperson withoutadisability.The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of adiscriminatory motive, in the absence of independent corroboration, must be approached with caution."
He also cited “The Employment Equality Act 1998”annotated by Anthony Kerr, where Mr Kerr made the following point in relation to section 8:
- "There is no requirement that the act in question be done with an intention to discriminate. These provisions are what have been describedas"result directed rather than intention directed". The duty not to discriminate has also been describedasone of strict liability, not subject toarequirement of fault-Southern Health Board v Mitchell DEE2/1999(reported at[1999)E.L.R.322)citing Case C-177/88, Dekker v VJV Centrum [1990] E.CR. /-3941 and Case C-180/95, Draehmpaehl v Urania Immobilienservice[1997]E.CR. 1-2195."
Summary of the Respondent’s Submission
Ms Maria Dillon, Solicitor, J.D. Scanlon & Co., Solicitors on behalf of the Respondent, contended that the Complainant has not produced evidence of aprima faciecase; no evidence of less favourable treatment and no comparator had been identified. She stated that the issues giving rise to the Complainant’s claim were due to human error on the part of the Respondent.
Ms Dillon informed the Court that one of the Respondent’s founders is a wheelchair-user and a Co-ordinator and a Manager employed by the Respondent both have diagnosed disabilities. The entire purpose and ethos of the organisation is to promote the rights of persons with physical and sensory disabilities. Therefore, she submitted that it would be very damaging, and entirely incompatible with the purpose and ethos of the Respondent organisation to find that the Complainant had been discriminated against on the basis of his disability.
She said that the Complainant stated on his curriculum vitae that he was “both dyslexic and intellectually gifted". She accepted that the Complainant had a disability within the meaning of the Act.
Ms Dillon contended that the Complainant had not met the burden of proof to discharge the onus on him that he has been discriminated against by reason of a disability in circumstances where the treatment afforded was entirely inadvertent and was due to an unfortunate human error on the part of the Respondent. This, she maintained, cannot amount to discrimination within the meaning of the Acts.
Summary of the Evidence of Mr Enda Egan, Chief Operations Manager
Mr Enda Egan, Chief Operations Manager, gave evidence on behalf of the Respondent. He stated that he had over 20 years’ experience working in the community and voluntary sector. He joined the Respondent’s organisation in March 2015 as the Chief Operations Manager.
He said that he personally suffered from a disability, he was involved with people with disabilities both in his family and in employment for many years and was very sympathetic to those with disabilities. In his professional role he endeavours to ensure that people with disabilities are supported and enabled to be as independent as possible.
Mr Egan referred to the Respondent’s vacant post for a Community Employment Supervisor advertised in March 2016. He said that there were 40 applicants for the position and he decided to split the applications between Mr Neal Culliton, Financial Controller and himself in order to short list the candidate and choose six for interview. He said that the filling of the post was an urgent matter and hence, the process was completed very quickly.
Mr Egan said that he had a brief conversation with Mr Culliton regarding the shortlisting process. They discussed the scoring sheet and the guidelines, both of which had been supplied by the Department of Social Protection. The witness said that he did not see the Complainant’s application, it had been allocated to Mr Culliton to consider for shortlisting purposes. The shortlisting exercise was carried out on 9thMarch 2016, interviews were held on 16thMarch 2016, successful candidates were ranked “first” and “second”. The first ranked candidate was informed on the day of the interview that she was successful. She accepted the position on that day.
The witness said that it was not until 22ndMarch 2016 that he became aware that the Complainant had telephoned the Respondent on 18thMarch 2016 expressing his concern at not being called for interview as he felt that he possessed all the necessary qualifications and met all the necessary criteria. At this point Mr Egan said that in conjunction with Mr Culliton they both examined the Complainant’s application and discovered that he had been incorrectly scored. He said that on this discovery and even before he had completed a new scoring for the Complainant, he immediately telephoned him to explain that a human error had occurred and that indeed his score would have entitled him to an interview. He said that on reviewing the Complainant’s application it was clear that he had the skillset for the position, he had real life experience with persons with disabilities and he would be suitable for a position in the future.
Mr Egan said that he apologised to the Complainant for the errors which occurred and offered to meet him along with Mr Culliton to explain matters to him. The witness said that the Complainant was very understanding of the matter, he said that he accepted the explanation at face value, there was no need to meet and he complemented him on the recovery service operated by the Respondent. The witness said that he clearly understood at that point that the matter was resolved and he could proceed with the recruitment process.
However, some months later the Respondent received notification that the Complainant had lodged a complaint under the Act with the Workplace Relations Commission.
Mr Egan said that on 24th March 2016, the first ranked successful candidate contacted him to inform him that she had been offered more beneficial terms by her current employer and had accordingly decided to decline the offer of employment. Therefore, he made contact with the second ranked successful candidate and offered her the job, she accepted the offer on 30thMarch 2016.
Mr Egan said that at the interview, the first ranked candidate informed the Board that she had had a riding accident which resulted in a spinal cord injury and she had spent one year in Rehab in Dunlaoghire. She had had a miraculous recovery and had two metal rods inserted into her spine. As a result, she informed the Respondent that she would require time off on Tuesdays and Thursdays for physiotherapy treatment. Mr Egan said that he was happy to agree to this request and it had no influence on her application for the position.
Mr Egan also said that the second ranked candidate who eventually secured the position also informed the Respondent that she needed time off from time to time for medical appointments associated with her thyroid disease. He said that the Respondent had no issue with this request and has supported her with whatever flexibility she required.
In cross examination, the witness was asked why he did not refer back to the Complainant following the rejection of the role by the first ranked candidate. He said that firstly he was concerned that candidate number two could potentially have a case against the Respondent if she was not offered the position when the first ranked candidate declined it and secondly, he said that he was under the distinct impression that the Complainant had accepted his explanation for the errors which had occurred and that he was not pursing the matter. Mr Egan said that he was anxious to stick with the process, however, as there were only two candidates ranked from the competition, he said that had the second ranked candidate declined the offer, he would have held a further competition which the Complainant could have been considered for.
Mr Egan said that he spoke to no one about the Complainant’s application and that he only became aware of it when he was informed on 22ndMarch 2016 about the Complainant’s telephone call on 18thMarch 2016. He strenuously denied that the reason the Complainant’s application did not progress was due to his disability and said that he did not become aware of this allegation until he received notification of the claim from the Workplace Relations Commission.
Mr Egan was asked about the Complainant’s theory regarding Ms W and Ms G. He said that he spoke to Ms G about her connections with Ms W and Ms G stated that she had had no contact whatsoever with Ms W for the past 15 years or so. Ms G had supplied a letter to that effect.
Summary of the Evidence of Mr Neal Culliton, Financial Controller
Mr Neal Culliton, Financial Controller gave evidence on behalf of the Respondent. He said that he joined the organisation on 23rdNovember 2015. He had previously been self-employed offering accounting services to the Retail industry. He said that he had never worked in the voluntary community/disability sector before. He was employed by the Respondent for only 3 ½ months when the position was advertised. Mr Culliton said that Mr Egan asked him to assist with the shortlisting process, they had a brief conversation, about 5 – 10 minutes, and he was given both the marking sheets and the marking guidelines. Candidates were to be assessed against a set of pre-determined criteria and marks awarded against those criteria.Mr Egan had informed him that there was an urgent need to fill the position and as the Respondent had limited resources, he was asked to assist in the process.
The witness said that he spent two hours going through the applications, scoring each one. He explained that he was new in the role and was unfamiliar with some of the terminology. There were ten criteria to be marked. Mr Culliton admitted that he did not understand the full significance of a number of those criteria, he said that he had no involvement in community employment schemes. He said that he did not take into consideration the details contained in either the Complainant’s covering letter or other applicants’ covering letters. He focused on the CVs and paid particular attention to certain areas, namely relevant education; management experience and training. He said that he did not understand ILP’s, TNA, EDCL. He said that the position was a management role and he was specifically looking for details of management experience, train the trainer experience, community involvement experience, (he gave examples Tidy Towns, Local Heritage, Community Sports/GAA) but he did not recognise any of these in the Complainant’s application. Mr Culliton gave an explanation for the marks he allocated to the Complainant under each of the criteria and freely admitted that he made a number of errors in doing so.
Mr Culliton said that he took no notice of the fact that the Complainant had said that he had Dyslexia and could not recall even seeing it on his CV as it was contained in his “Personal Statement” which he took no account of. He said that he erroneously allocated maximum marks under the heading “Full Driving Licence and Own Transport”, even though the Complainant had not stated that on his CV. These marks were given in error, he said that he assumed that the Complainant met this criterion. However, as this was one of the essential criteria for the job, he postulated that if it was his intention to exclude the Complainant then why would he award maximum marks under that criterion.
The witness said that it was only when Mr Egan brought it to this attention on 22ndMarch 2018 that the Complainant had queried why he was not called for interview and an examination of the scoring was undertaken that he realised his mistakes.
Mr Culliton said that he responded to the Complainant’s EE2 form which was sent to the Respondent on 24thSeptember 2016. By letter dated 28thOctober 2016, he responded to each of the questions raised by the Complainant. This included,inter alia,stating that the Respondent did not know how many applicants and/or how many of those called for interview had a disability, as such information was not sought/supplied (except for the Complainant).
Burden of proof
Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.
The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination inMitchell v Southern Health Board[2001] ELR 201. That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed.
The type or range of facts which may be relied upon by a complainant can 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 or 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 aprima faciecase. 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.
There are, however, a number of authorities which are instructive in considering the issues arising in the instant case. The mere fact of a difference in status (in this case disability) and a difference in treatment in the sense that one person was appointed to a post and the other was not, is in itself insufficient to shift the probative burden, (see the Judgment of the Court of Appeal for England and Wales to that effect inMadarassy v Nomura International plc,[2007] IRLR 246). Further, in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision-makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result (see Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technology).
Facts relied upon
In the instant case the Complainant contended that the selection process was unfair and lacking in transparency and therefore an inference of discrimination can properly be drawn. In advancing this line of argument the Complainant alleges that he was excluded from the competition at the shortlisting stage due to the fact that the marks awarded to him were incompatible with his qualifications and experience for the post. Therefore, he contended that the agreed marking system was inconsistently applied to him. He further contended that he was the perfect match for the position yet was not called for an interview. These facts, he maintained, coupled with the fact that he openly divulged his disability in his curriculum vitae, were sufficient to raise an inference of discrimination on the disability ground.
The Court is satisfied that the findings of primary fact made by the Complainant are such as to raise an inference of unlawful discrimination. Accordingly, the Respondent bears the probative burden of establishing that its failure to progress the Complainant in the competition for a Community Employment Supervisor in March 2016 was unconnected to his disability.
Findings and Conclusions of the Court
The Court has carefully considered the evidence adduced in the course of the hearing and the documentary material with which it was provided and has considered each of the contentions in the light of the evidence adduced and has concluded as follows: -
There is no doubt that the Complainant was not given the same opportunity as other candidates to have his suitability for the post assessed and accordingly the process was not conducted in a fair manner. However, having regard to the evidence proffered by Mr Culliton, the Court is satisfied that the incorrect scoring allocated to the Complainant at the shortlisting stage was as a result of genuine human errors. The Court notes that there was an urgency surrounding the filling of the post which led to certain inefficiency in the process. That situation was compounded by the fact that Mr Culliton was new in the organisation, was new to the community employment sector and did not receive adequate training/instructions on the day. It was Mr Culliton who conducted the shortlisting exercise on the Complainant’s application, resulting in his non-selection for an interview. The Court is further satisfied that these errors/omissions were not motivated by the Complainant’s disability.
While the Court accepts that the Complainant had genuine grounds to question why he was not shortlisted for an interview for the advertised role, some arguments he submitted amount to no more than mere assertions which cannot be accepted as evidence on which the Court could base findings of fact. In that regard, the Court does not accept that the Respondent was influenced in any way by any external person.
Discrimination on the disability ground can occur where a person with a particular disability is treated less favourably than a person with a different disability.At the time it offered the position to the second ranked candidate, it was reasonable for the Respondent to assume that all matters with the Complainant had been resolved and its apprehension regarding a possible claim from the second ranked candidate was a real concern.
The Court is satisfied that there is no evidence to show a discriminatory disposition on the Respondent’s part, indeed the evidence points to the opposite, the Respondent employed a number of persons with disabilities and was actively engaged in supporting people with disabilities.
In all the circumstances, the Court is satisfied that the Respondent has discharged the burden of proof.
Determination
For all of the reasons set out above, the Court finds that the Respondent did not discriminate against the Complainant on the disability ground contrary to the provisions of the Act. Accordingly, the decision of the Adjudication Officer is set aside and the appeal is allowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
31 August 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.