Complainant

Respondent

Parties

Gerard  Madden

Irish Prison Service

Representatives

Self-represented

Barra Faughnan B.L., instructed by Emmet Hayes Chief State Solicitor's Office

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-00066975-001

25/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent undertook to give evidence under affirmation.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that he was discriminated against on the basis of a disability.  He also claimed that he was not provided with reasonable accommodation.  He applied for a promotion with the employer and undertook an interview remotely from his home.  He submitted that there were technical issues, and the interview could not proceed.  He submitted that he was told that he would have another interview but was not given the chance to redo the interview.

The complainant submitted that he did not do a test call before the interview as it was his third interview that year.  The respondent did not revert to him for another chance to undertake the interview, the promotional panel was drafted without giving him an opportunity to re-sit the interview.

In evidence, the complainant confirmed the version of events from his written submissions.  Under cross examination, he confirmed that he did not tick the box indicating that he had a disability or indicate that he needed additional assistance.  He also confirmed that he did not test the line in advance of the interview as per the procedural notice issued in advance.

The respondent submitted that, broadly speaking, the facts are not in dispute.  The complainant was out sick from work but when he completed the promotion application form, he did not tick the box indicating that he had a disability and therefore may need additional accommodations.

The respondent submitted that the complainant was one of three people who had technical problems with a remote interview.  The structures to test the line were built into the process but the complainant did not avail of this.  It was noted that none of the three were called to another interview and that neither of the other candidates had a disability.  All three were not included on the promotional panel.  The respondent submitted that various options were built into the promotion process to cater for an applicant with a disability, but the complainant did not avail of these or indicate that he had a disability.

The respondent submitted that even on the undisputed facts, the complainant has not made out a case of discrimination such as to shift the burden of proof onto the complainant. 

The witness for the respondent was the HEO in charge of running the competition.  She stated that three people failed the interview due to IT issues.  She stated that other candidates had IT issues, but they had used the test system, and their issues were rectified. There was advice contained in the guide to rectifying issues sent to prospective candidates.

She noted that the Interview Board comprised two internal and one external member.  She acknowledged that the complainant was mistakenly told that he would get another opportunity to interview.  No cross examination took place.

Section 2 of the Employment Equality Act, 1998 includes a definition of disability.  It states 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 respondent did not dispute that the complainant had a disability.  Although the parties accepted that the complainant was out on sick leave when he undertook the promotion, I am not satisfied that the complainant has established to my satisfaction that he suffered from a disability as outlined in the Act that would include him in the protections of the Act.

The respondent had incorporated procedures into the promotion competition to cater for a person with a disability.  The complainant did not avail of that procedure.  Accordingly, I am not satisfied that the complainant sought reasonable accommodation in accordance with the Act.

In relation to discrimination under the Act relating to a disability, a candidate is required to indicate a comparator without a disability who was treated differently.

Section 28(1) states

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

(a) to (e) are not relevant to this complaint

(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;

(g) & (h) are not relevant to this case

Two other candidates for the promotion competition had similar technical issues to the complainant.  They did not have a disability.  They similarly did not test the line in advance.  They were not called to a second interview either.  Having heard the evidence from the complainant, I am not satisfied that he has established facts from which it is possible to infer that the complainant was treated less favourably than another person in the same situation without a disability.

Section 85A(1) of the Act provides that “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.”

In the case of Valpeters v. Melbury Developments Ltd [2010] ELR 64, the Labour Court held that a complaint being put forward by a complainant must rise above a certain threshold and must not simply amount to ‘mere speculation’:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

To my mind and arising for all of the foregoing, the complainant has not established facts from which discrimination may be presumed.  The burden of proof does not shift onto the respondent

Accordingly, I find that the complainant was not discriminated against in respect of this complaint.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality – no evidence of discrimination established