Complainant

Respondent

Anonymised Parties

A Job Applicant

A Human Rights Organisation

Representatives

  Self

Michael Kinsley, B.L. instructed by Feidhlim Mac Róibin,  McInnes Dunne Murphy LLP

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-00069839-001

07/03/2025

The Complainant was an applicant for a senior position advertised by the Respondent.  She applied and participated in a pre-screening process.  She alleges that this process was discriminatory in nature as there were unnecessary references to her disability and care regime as well as questions about her country of origin.  The Complainant also contends that she was not afforded the reasonable accommodation which she had requested.  As a result of this her application did not progress to the interview stage of the competition.  She submitted her complaint to the WRC on 07/03/2025.

The Respondent rejects the Complainant’s assertion that she was subjected to discriminatory treatment.  The process was carried out fairly and robustly and in compliance with all lawful requirements.

The Complainant requested a remote hearing as she is living outside of Ireland.  She did not specify any other special facilities.  She was offered the opportunity to be assisted and/or supported by someone but she declined on the basis that she did not think this would be helpful.  The Complainant was given a number of breaks to assist her present her case and she availed of these.

The Complainant gave evidence on affirmation.  She stated that she was treated unfairly at the pre-screening interview due to questions about her disability and national origin.  The Complainant submits that she advised the Respondent by email on 7/2/2025 that she would need reasonable accommodation during the interview process.  She outlined that the accommodation sought was to have questions issued to her in advance and to be allowed a longer period of time for her interview.  The Complainant stated that she suffers from PTSD and this affects her in the form of panic attacks.

She was invited to a pre-screening interview and she was not given any questions in advance.  She had assumed that this would be an informal discussion about her application.  However, the Complainant stated that this was an interview and the focus was on her qualifications and experience.  The Complainant stated that having questions in advance assists her to manage the process.  The Complainant submitted that the recruitment consultant stated that she was not familiar with the concept of reasonable accommodation and that she would need to seek legal advice.  The Complainant also gave evidence that the recruitment consultant asked about her impairment and although she tried to deflect these questions, she was persistent and she had to disclose that she had PTSD.  She was then asked what help she was getting with this.  The Complainant outlined that she felt this line of questioning very humiliating but as it was a job interview, she had to respond to the questions.  The Complainant stated that she asked for confidentiality in relation to this and told the recruitment consultant that the questions were inappropriate.  The Complainant also stated that she stated that the questions about her country of origin were inappropriate and she asked the recruitment consultant why she wanted to know.  The Complainant stated that when she explained where she was from, she observed an expression of revulsion on the face of the recruitment consultant.  She stated that she felt as though she had to justify where she was from.

The Complainant explained that after the interview she was contacted by an email from the recruitment consultant and asked if she could share details about her impairment with the interview panel.  The Complainant stated that she advised that she wanted this kept confidential and she tried to get the consultant to focus on her qualifications and skills for the role.  Sometime later she received a phone call from the recruitment consultant and was informed that her application would not be progressing to the interview stage. She explained that the reason for this was her lack of recent Irish policy experience. 

The Complainant referred to the document submitted to the interview panel with the candidate summaries.  She felt that this does not reflect well on her and her more direct human rights experience.  She felt that this summary “significantly downplays my experience and knowledge”.  In response to a question from the Adjudication Officer the Complainant stated that this demonstrated bias on the part of the recruitment consultant.  The Complainant explained that the job description states that knowledge of human rights experience is critical and the reason she was given for not being shortlisted was her lack of recent human rights experience and this was not mentioned in the job description.

It is the Complainant’s position that the candidate summary downplays her experience and if she was afforded the reasonable accommodation requested then she would have been able to emphasise any additional experience.  The questions about her disability and country of origin were wrong and it is not clear how these were applied to her shortlisting.

Closing statement – the Complainant:

In her closing submission the Complainant stated that the reason her application was not taken forward and the reason as outlined in the candidate summary was different to what she was told on the phone.  This reasoning is also inconsistent with the job description and totally at odds with the Respondent’s diversity statement.

In relation to proof of her disability the Complainant stated that all she had is a thread of emails from the therapy she attends.  She stated that it is difficult to obtain a GP appointment in the country she currently resides in.

The Complainant also stated that she noted that there was a postponement request from the Respondent and she objected to this as she wanted her case to proceed.  The Complainant also submitted that the late submission from the Respondent should be taken into account by the Adjudication Officer.

Cross Examination – the Complainant:

The Complainant was cross examined by Mr Kinsley, B.L., on behalf of the Respondent. Mr Kinsley explained that his role was to put the Respondent’s case to the Complainant and she confirmed that she understood the approach.

It was put to the Complainant that the decision not to proceed with her application to interview stage was based on her relevant experience and not based on her disability or nationality.   The Complainant stated that she did not agree and felt that there was a change in the shortlisting process which was inconsistent with the information provided.

It was put to the Complainant that the Respondent approached the recruitment company to carry out the shortlisting process and the candidate summary does not mention disability or nationality.  The Complainant stated that which is in that document is different to what the recruitment consultant told her on the phone.  The Complainant stated that she agrees with the first part of the paragraph.  It was put to the Complainant that there was no disability discrimination contained in that document.  The Complainant stated that disability discrimination occurs when one is seen as being less capable due to their disability.  It was put to the Complainant that there is no mention of a disability in the candidate summary.  The Complainant stated that the summary significantly downplays her experience.  There is no mention of her governance, fundraising and Irish experience in another organisation. There is also no mention of the significant responsibilities that she had.  This summary downplays her career.

It was put to the Complainant that there was no basis to say that her application did not proceed because of a disability or nationality.  The Complainant stated that she noted the recruitment consultant’s “pitying tone”, her questions about her care regime and the mental supports she required to function.  In that context her career history as outlined was limited and it deliberately downplayed her experience.

It was put to the Complainant that the role she applied for was a very significant role in the Irish human rights area and the basis for her application not being shortlisted was her lack of Irish experience in a senior role like this.  The Complainant stated that the criteria has now changed from that in the Respondent’s written submission. It was put to the Complainant that she had previously expressed an interest in the role when it was then advertised.  She agreed.  The Complainant also agreed that she sought to explore if certain changes in leadership could be looked at.  The Complainant confirmed that she did not apply at that time as she was satisfied that she was not a good fit then. 

The Complainant confirmed that she received an email about the call with the recruitment consultant.  It was put to her that the Candidate Booklet which she received stated in the “How to Apply” section that if someone had any specific accommodation to let the Respondent know. She agreed.  It was also put to the Complainant that the same booklet stated that the first round of interviews would be held during the week of 24/02/2025 and the second round of interviews during the week of 03/03/2025 and that she had a conversation with the recruitment consultant.  The Complainant stated that she had two conversations with the recruitment consultant.  It was put to the Complainant that the first time the recruitment consultant was aware of a disability was in the email of 07/02/2025 where she stated that “… if selected for interview, I may need some adjustments such as needing interview questions 2-3 days in advance and a little extra time in interviews.  This will help manage my disability.”  The Complainant agreed.  It was put to the Complainant that the adjustments she asked for were for the interview stage of the process.  The Complainant stated that she believed that the pre-screening meeting would be informal.  She realised that it was conducted in an interview format as it was an assessment of her skills.  The Complainant stated that as that was the purpose of the pre-screening process she was not provided with reasonable accommodation.

It was put to the Complainant that all candidates had a pre-screening interview.  The Complainant stated that the selection for interview was based on the pre-screening interview. During this process the Complainant stated that she was “grilled on my qualifications and experience.  It was very formal”. 

It was put to the Complainant that she received an email from the recruitment consultant on 12/02/2025 which clearly stated the following:  “As you know, I am leading the search for this role and, having reviewed your CV and cover letter, I would like to arrange a pre-screen interview with via Zoom. The meeting should last around an hour and will enable me to find out more about the skills, qualities and experience you have outlined and to answer any questions you may have about the role.”  There was no ambiguity and in relation to this and it was put to the Complainant that in her email response there was no mention of reasonable accommodation.  The Complainant stated that she had already put in her request and she understood that her reasonable accommodation request would be honoured as she had entered the process in good faith.

It was put to the Complainant that she made no request for reasonable accommodation for this kind of meeting.  The Complainant stated that she had made it clear what she needed and she did not know that it was going to be a formal interview.  She was undergoing a panic attack during this interview and she found it difficult to manage it.

It was put to the Complainant that after the meeting with the recruitment consultant it was made clear to her that if she wanted to submit any further information or change her CV this would be facilitated.  The Complainant agreed and stated that she believed that the recruitment consultant crossed the line between pre-screening and a formal interview.  The Complainant stated that she believes that the pre-screening was used for a different purpose and that was to present her skills to the selection panel.

It was put to the Complainant that the recruitment consultant will give evidence that there is a line between the pre-screening and formal interview process.  The shortlisting process was for a formal interview and the pre-screening was different.  The Complainant stated that she was asked typical interview questions during the pre-screening about her skills and experience.  It was almost two hours of a grilling of her skills and experience to see how she fitted the role.  The Complainant stated that she does not accept that reasonable accommodation does not apply in that situation.

The Complainant confirmed that she received the email from the recruitment consultant on 18/02/2025 in which she acknowledged her updated CV and additional information.  She also queried about disclosing the reason for the request for special accommodation to the interview panel.  It was put to the Complainant that in her response to this email she did not mention any issues with the pre-screening meeting or anything about inappropriate questions.   The Complainant stated that the interview was two hours long and she as a result of this she made come changes to her CV and tweaked her cover letter.  The bulk of this interview was assessing her skills.  The Complainant stated that she did not complain at that time as she thought she had a chance and she worried that to complain then might make her appear as difficult and uncooperative.  The Complainant stated that it is her experience that people get defensive when you complain.  She stated that she tried to deflect the inappropriate questions but she had no choice but to answer.  Her resolve was worn down during the interview and she did try to emphasise that the questions were inappropriate.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

It was put to the Complainant that her account is inconsistent.  If the recruitment consultant had behaved so badly and the Complainant did not raise and object to what she alleged.  The Complainant stated that not being believed is very difficult for her.  She felt that she could not go directly to the recruitment consultant and there was no complaints procedure outlined.  In addition to this the Complainant stated that she was physically sick after the pre-screening interview and she missed out on other job interviews as a result.  She lost trust in the process and with recruiters.  The Complainant also stated that she felt that she might prejudice her application if she complained and she was in survival mode during that time.

It was put to the Complainant that the recruitment consultant agreed to her request for adjustments if she was selected for interview and that she did not clarify that these accommodations would also be required during the pre-screening process.  The Complainant stated that she did not want to come across as negative or uncooperative.  If she called the recruitment consultant out in relation to her discrimination, she would not have progressed the Complainant’s application.

It was put to the Complainant that she was in a position on 19/02/2024 at 09.24am to make her concerns known.  The Complainant was asked where the quote in that email came from.  The Complainant stated that this quote was from her email of 07/02/2025 and it shows that she had problems with the questions she was asked.  It was put to the Complainant that the quote in her email of 19/02/2025 was not a direct quote from her email of 07/02/2015.  There were additional comments which were not in the original email but were made to look as if they were previously part of that email.  The Complainant stated that she believes that this was intended to redirect the recruitment consultant.

It was put to the Complainant that the recruitment consultant will say in her evidence that the email of 20/02/2025 confirms that she complied with the Complainant’s request.  The Complainant stated that she disagreed.  The Complainant stated that the recruitment consultant told her that she would have to seek legal advice in relation to her request for reasonable accommodation.  The Complainant stated that it was not her assertion that the recruitment consultant shared the information about reasonable accommodation but that she downplayed her experience.

In relation to the racial discrimination complaint, it was put to the Complainant that racial and disability discrimination complaints only arose when she did not get the job.  It was put to the Complainant that the process was objective.  The Complainant stated that it is her experience that people who are discriminated against push through.  She stated that she should not be judged on not raising a complaint.  There was no request to raise a concern at that time.  The Complainant stated that she is normally very accepting when she does not get a job.  She believes that the questions from the recruitment consultant indicate that she was less capable and this was borne out by her facial expressions.  The Complainant stated that she felt that she had to justify to the recruitment consultant where she was from.  The persuasive manner of the recruitment consultant had already prevailed and there was a pattern to her inappropriate questions. 

It was put to the Complainant that the evidence from the recruitment consultant will be that is it very difficult to recall facial expressions.  The question about where she was from is common and it was already clear where the Complainant came from.  Two other candidates also came from the same country and they were shortlisted.  There was no basis to say that there was anything negative noted because of her country of origin.   The Complainant stated that asking a candidate at interview where they are from is not a common question.  It was not asked in a friendly chat; this question was asked the same as any of the other questions.

Closing submission:

In a closing submission the Complainant stated that this case is not about whether she got a job or not.  The recruiter asked intrusive questions about her disability and the help she was getting.  It is the Complainant’s position that she would not have volunteered this information during an interview and in view of her experience “I know better than to divulge that information”.   The Complainant stated that she was also asked where she was from and this was not a casual conversation – it was an assessment of her skills and experience for the role she applied for.

The Complainant stated that she was shocked when she was told about the outcome.  There were shifting criteria used and she was not informed of this.  The recruiter failed to engage with her accommodation requests and the values espoused by the Respondent were not upheld.  The Complainant stated that she was in the WRC not because of what happened but because of what it represents.  She believes that discrimination has occurred.

Evidence of Ms A (Recruitment Consultant):

Ms A gave evidence on affirmation.  She outlined that she has worked for over 30 years in the not-for-profit sector and much of this was at a senior level.  She had diverse recruitment experience and has HR qualifications.

She outlined that her company was approached by the Respondent in 2024 in relation to this role.  She was asked to undertake the recruitment process as she had previously worked with the Respondent.  The requirements for the post were set out in the Candidate Information Pack.  The content and criteria to be used were agreed and discussed by the Respondent’s Board and Search Committee.

Ms A outlined that the Respondent has set out the essential criteria in the job description for this executive role.  There were additional criteria such as experience in working in human rights, public space and stakeholder engagement.  There were also criteria such as familiarity with relevant case law, policy provision and Irish and EU knowledge of human rights.

Ms A gave evidence that the role was advertised in November 2024 but there was no successful candidate.  Ms A stated that when the role goes “live” they receive enquiries and they send out information and reminders about closing dates.  It was on the back of that that the Complainant got in touch with her.

Ms A stated that the Complainant’s query in November 2024 was to see if the Respondent would be open to a flatter structure and as she was not sure she volunteered to raise this question with the Respondent.  The Complainant did not want to have this query progressed and that was the end of her involvement in 2024.

The post was readvertised in January 2025 and a new campaign was launched.  Ms A stated that the Complainant contacted her by email on 14/01/2025 and she raised similar issues to those in 2024. These were about a flatter structure in the future and a more collaborative leadership structure.  It was agreed that Ms A could raise this with the Board and she was advised that this might be possible in the future. 

Ms A stated that she received a CV and letter from the Complainant on the 07/02/2025.  In her cover email she stated “Just to let you know, if selected for interview, I may need some adjustments, such as needing interview questions 2-3 days in advance and a little extra time in interviews. This will help me to manage my disability. I may also ask some questions about what to expect on the day and will let you know if any unanticipated requirements emerge.”  Ms A stated that she understood this meant that if the Complainant was called to the formal interview stage, she may need some adjustments.

Ms A stated that “selected for interview” means that candidates are called for a formal interview by the Search Committee.  Ms A stated that the pre-screening process is supportive and an opportunity for prospective candidates to tease out any information which is not clear.  It also looks at the skills and experience of each candidate.  It is an opportunity for candidates to ask questions.  The approach is conversational and it is not a formal process.  Ms A clarified that if it was felt that a candidate had left something out of their CV this preliminary process gave them an opportunity to add and/or improve the strength of their application.

Ms A stated that the Candidate Information Pack gave details of the dates for two formal interviews.  The formal interview is a panel interview and is conducted by the Respondent.  There are a series of formal questions and a presentation may also be required.

Ms A stated that in her meeting with the Complainant she asked if she had attended a pre-screening meeting with her company previously.  The Complainant stated that she had not so Ms A gave an outline of what a pre-screening meeting is. In summary it is an opportunity to review the CV before she would pass it on to the employer.

Ms A was asked about the Complainant’s evidence that she was asked questions about her disability.  Ms A stated that this came about at the end of the meeting and she was aware that the Complainant had asked for accommodations if called to interview.  Ms A stated that the Complainant explained to her that she had complex PTSD and she asked her if she was ok.  She was concerned about the Complainant as this was an unexpected response.

Ms A was asked about the Complainant’s statement that she made a disparaging facial expression when she mentioned where she was from.  Ms A stated that that would be untrue.  She is friends living in the same place and she has a good relationship with people there.  Ms A stated that she fails to understand why the Complainant would say that she reacted in that way.  There were two other candidates from the same place and these were shortlisted for interview.

Ms A confirmed that she received a number of emails from the Complainant after 17/02/2025 and she did not suggest in any of these that she was mistreated or not provided with reasonable accommodation.   Ms A also confirmed that there was no complaint received by her company from the Complainant.  Ms A stated that if a complaint was made, she would have to challenge it.

Ms A confirmed that the Complainant was not shortlisted for interview.  There were 7 outstanding candidates who not only met the essential criteria but also the desirable criteria.  All candidates had a cordial conversation with her during the pre-screening process.

Ms A confirmed that the candidate summary opened at the hearing and included in the Respondent’s submission was an accurate reflection of the Complainant’s skills and experience.  She agreed that she could always have written more.  Ms A confirmed that she rang the Complainant to let her know that she was not shortlisted.  This was a very short telephone call and there was complete silence on the part of the Complainant.  Ms A said that she shared the reasons for not shortlisting with the Complainant.  Ms A felt that the call ended abruptly.   Ms A stated that this was a much shorter call than that which she had with other unsuccessful candidates.

Ms A stated that if the Complainant was called for interview, she would have shared her request for reasonable accommodation at that point.  This was not necessary as she was not shortlisted.  If any of the 7 candidates fell out of the process, they could revisit the shortlisting again.

Ms A confirmed that the Complainant’s disability or nationality had no bearing on the shortlisting.

Cross examination – Ms A:

Ms A was cross examined by the Complainant.  She was asked what she meant when she stated that the Complainant “may need” reasonable accommodation.  Ms A stated that she understood that the Complainant only asked for reasonable accommodation at the formal interview stage.  She stated that she sent the Complainant a Zoom invitation five days in advance and she did not ask for questions in advance.

It was put to Ms A that there was an inconsistent approach with the pre-screening process and whether it was a formal or an informal process.  Ms A stated that the approach was conversational.  The Complainant stated that she found it humiliating.  Ms A was asked if she asked interview questions.  She stated that she did not ask interview type questions and it was not a formal interview.  It was put to Ms A that some questions were interview questions such as questions about the motivation to apply for the role.  Ms A stated that the process was intended to get to know the candidate and review their skills and experience.    It was put to Ms A that despite this it was actually an interview.  Ms A stated that it was not and she did not make a decision about a successful candidate.  She made several recommendations to the Search Committee and it was they who decide on the successful candidate.

It was put to Ms A that she stated in evidence that the Complainant volunteered the information about her impairment.  Ms A stated that she asked the Complainant about the adjustments she required and she asked her to share as and she needed to know how to support her if she was called for interview.  Ms A stated that this took place at the end of the meeting.  Ms A was asked if she considered that if a person was getting help with their mental health that they should be asked about their disability.  Ms A stated that she was concerned and the Complainant raised very personal information that she did not ask for. 

Ms A was asked if she had any training in relation to equality law and she confirmed that she had.  She was then asked why she would have to seek legal advice when the Complainant requested reasonable accommodation.  Ms A stated that she did not state that.

It was put to Ms A that she did not tell the Complainant that recent senior human rights leadership in an Irish organisation was a requirement.  Ms A stated that this was an essential requirement and seven candidates met this requirement as well as meeting the desirable criteria of having Irish experience.

It was put to Ms A that the Complainant’s experience was downplayed in the summary provided as this did not indicate her entire experience.  Ms A stated that she did not downplay the Complainant’s experience.  She stated that she described the Complainant’s experience and she noted that the Complainant had worked in consultancy whereas seven other candidates had current experience.

Ms A was asked how the diversity paragraph was operationalised in the shortlisting.  Ms A stated that the diversity paragraph describes the process and not how the shortlisting is undertaken.  It was also put to Ms A that the last page of the job description outlines the personal characteristics for the role.  Ms A stated that just because someone applies it does not automatically mean that you get shortlisted.

Ms A was asked if she was coached on the Respondent’s diversity policy.  Ms A stated that she was not coached.  She had run previous campaigns for the Respondent and was familiar with their policy.

Ms A stated that she wanted to be clear that the Complainant’s disability or nationality played no part in the shortlisting process.  The shortlisting was focussed on the Complainant’s skills and experience.

Evidence – Mr B

Mr B gave evidence on affirmation on behalf of the Respondent.  He explained that he is a Board  member of the Respondent’s organisation.  He was not part of the Search Committee but he was a member of the interview panel in 2024.

Mr B explained that he is the CEO of a similar organisation in another jurisdiction and his role would be equivalent to that which the Respondent had advertised.

Mr B was asked about the criteria and in particular the reason for having Irish experience.  He stated that you could not do the job if you did not have knowledge of the Irish human rights work and also the need to represent the organisation at various levels in Ireland, including the media which would often include difficult and detailed interviews with very little lead time.  The Respondent needed someone who could hit the ground running.

Mr B was asked if he considered that it was reasonable not to shortlist the Complainant.  He stated that he believed it was and he noted that her experience was glowing but other candidates had the desirable experience.

Mr B was asked about how the Respondent’s governing body would approach less favourable treatment.  Mr B stated that equality and diversity were the very DNA of the Respondent.  The Respondent deals with matters such a human rights, civil liberties, equality and diversity.

Cross examination – Mr B:

Mr B was cross examined by the Complainant.  He was asked what steps the Respondent took to ensure that the recruitment consultant was able to manage requests for reasonable accommodation.  Mr B explained that he was not directly involved in the process that selected the recruitment company to run the recruitment campaign.  This would have been done through a contract process.  Mr B confirmed that he was not involved in that process either.

Mr B was asked if the Board reviewed how the recruitment process went.  Mr B stated that that would be done by the Respondent’s staff and not the Board.

Mr B was asked what safeguards were in place to guard against unconscious bias.  Mr B said that they utilise the services of a successful and highly regarded recruitment company.

Mr B was asked if he believed a candidate should be asked about their disability and care regime during an interview.  Mr B stated that they should not be asked but if a candidate sought reasonable accommodation, it may be necessary to ensure that it was in place.

Closing submission:

Mr Kinsley, B.L., made a closing submission on behalf of the Respondent.  He noted that there were two claims in this complaint.  One was discrimination on disability ground and the second was discrimination on the ground of race.

In relation to the discrimination there is case law which is relevant.  The case of Swan O’Sullivan v Counihan EDA10/2018 notes that “the existence of a disability can operate as a threshold or locus standi issue.  That arises because, except in cases of associate or imputed disability, a cause of action for discrimination on grounds of disability can only accrue to a person whose circumstances come within the meaning ascribed to that term by section 2(1) of the Acts.”

This requires expert confirmation in relation to the presence of the disability.  The Complainant does not have the locus standi in this case.  It is not enough for a Complainant to say that they have a disability.  The recent COVID-19 mask related cases in the WRC also confirm this point.  There is a requirement to provide evidence of a disability under section 2 of the Act and that needs to demonstrate that the accommodation needs are necessary because of the disability.

As the Complainant has not provided any evidence of a disability, she cannot be successful in her complaint.  The evidence is clear, the burden of proof is on a Complainant to establish the fact that there is a prima facia case.  The complaint relates to a meeting on 17/02/2025 and the correspondence after that meeting is clear and there was never any suggestion of a complaint.  The Complainant’s words are also crystal clear: “Just to let you know, if selected for interview, I may need some adjustments …”   

The is further clear case law in relation to this.   The case of Senior Nurse v A Health Provider (ADJ-00014952) noted that in order to establish a prima facie case of discrimination, a Complainant must produce medical evidence confirming the existence of the disability alleged, if not during their employment, then at the very leasy at the time of the hearing of their complaint under the Employment Equality Act.   In that case the Adjudication Officer, in rejecting the claim stated:

“it may well be asserted by the Complainant that she did suffer from a cardiac condition, however, an assertion unsupported by credible evidence is insufficient to establish facts from which a disability can be inferred so as to shift the burden of proof to the Respondent.”

In relation to the complaint of racial discrimination this does not even get off the ground.  The only evidence adduced by the Complainant was of a facial expression on a Zoom call.  It is not unusual to ask a person where they are from.  This was a friendly conversation and the Complainant is mistaken in relation to the recruitment consultant who denies the assertion.

The decision not to progress the Complainant’s application to formal interview stage was not based on disability or race or any other protected ground but was based solely on the Complainant’s experience and skills and how this compared to the other candidates in the competition.

The Complainant referred her claim pursuant to the Employment Equality Acts 1998, as amended, to the Director General of the WRC on 07/03/2025.

The Complainant alleged that she was discriminated against by the Respondent on the grounds of disability, race and in the failure to provide reasonable accommodation.  The Complainant alleges that this discrimination took place during the application process for a senior role with the Respondent.  Specifically, the Complainant had a Zoom pre-screening interview with a recruitment consultant acting on behalf of the Respondent.  The Complainant was not short-listed for interview following this meeting and she contends that questions about her condition and treatment regime as well as references to her country of origin were discriminatory in nature.

The Respondent denies the claim.

The Respondent asserted that no meaningful evidence, medical or otherwise, was presented by the Complainant to the effect that she suffered from a disability. Furthermore, the evidence presented by the Complainant was not correct as the meeting was a pre-screening meeting and not a formal interview as alleged.

Section 6(1) of the Act provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”.

Section 6(2)(g) of the Act defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The definition of disability in Section 2(1) of the Act is as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

The Complainant submitted that she suffers from PTSD.

The definition of a disability has been interpreted in a broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of  Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) C-354/13 The European Court of Justice stated at paragraph 53 that:-

“…the Court held that the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”

In A Government Department v A Worker EDA 094 the Labour Court held that the definition of disability in the Employment Equality Act 1998 (as amended) does not refer to the extent to which the manifestation or symptoms must be present. The Court acknowledged that symptoms which are present to an 'insignificant degree" could be disregarded in determining whether the condition amounts to a disability. The Court held as follows:

“It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it-"shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person"

It is well settled that for an employee to come within the protections of the of the Act, they will first have to show that they suffer from a disability within the meaning of the 1998 Act and that they put the Respondent on notice of the disability at the material time and that the disability was connected to their inability to gain access to employment. This issue was addressed by the Labour Court in the case of A Retail Company & A Worker EDA 2012. In that case the Labour Court pointed out that the Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The Court pointed out that it is necessary for the Complainant to show that he had a disability as defined above in the Acts. 

The Labour Court in A Worker v An Employer EDA 1927 noted that a Complainant must demonstrate that they have notified the Respondent of a disability within the material time.  In that case the Labour Court stated that the fact that the Respondent was “not provided with any medical evidence that the Complainant had a disability” within the meaning of the 1998 Act and in those circumstances the Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”.

In the within case, the Complainant did not provide any medical or other expertise to confirm that she had a disability and she confirmed that all she had was emails which were exchanged with her treating therapist.  This would not meet the requirements which could include a history or summary of the disability and detail as to what the condition entails.  No such details were offered at the adjudication hearing by the Complainant.

I am guided by the Labour Court determination A Retail Company v A Worker EDA 2012 and I find that the Adjudication Officers of the WRC, similarly to the Labour Court have no medical expertise and rely on medical evidence and other professional evidence presented to them to determine the existence of disability or otherwise. It is not the role of an Adjudication Officer to research or second guess or speculate whether a named illness falls within the definition of a “disability” pursuant to section 2(1) of the Act.

In light of the insufficient evidence provided it is not possible for me to determine that the Complainant had a disability at the relevant time. Consequently, I find that the Complainant has not established a prima facie case of discrimination on the grounds of disability and she has not shown that the Respondent acted in a discriminatory manner towards her.  The Complainant is also required to establish a comparator for her claim of disability discrimination. Section 28 of the 1998 Act provides:

28 – (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;”.

The Complainant has not identified a comparator that has no disability or a different disability and who was treated more favourably than her and how that comparator was treated more favourably than her.  As outlined above Section 28 of the 1998 Act the Complainant must identify a comparator at the outset in order for the case to progress.

In relation to the complaint that discrimination occurred on the ground of race.  The Complainant’s evidence is that she observed an expression of revulsion on the face of the recruitment consultant when she clarified where she was from.  It is difficult to understand how this observation can be inferred as discrimination.  In that context I prefer to accept the evidence of the Ms A, the recruitment consultant, that it is difficult to recall facial expressions and, in any event, this was an informal conversation at the end of the pre-screening meeting.  Consequently, I find that the Complainant has not established a prima facie case of discrimination on the grounds of race.

I have decided that the Complainant was not discriminated against by the Respondent on the ground of disability or on the ground of race.

Discrimination – disability and race.