Complainant

Respondent

Parties

Noel  O'Connell

National Council for Special Education

Representatives

Michael Kinsley BL instructed by Sinead Lucey, Free Legal Advice Centres

M P Guinness BL instructed by Jack O'Connor Eversheds Sutherland 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-00053343-001

18/10/2022

The Complainant applied for employment with the Respondent.

This complaint was received by the Workplace Relations Commission on 18th October 2022.

The hearing of this complaint took place on 21st February 2025.

BACKGROUND

1. The Claimant has been deaf since childhood.

2. The Claimant’s first language is Irish Sign Language (ISL) and he is fluent in ISL and uses it daily. In common with most deaf people, and those that use ISL daily, the Claimant does not have an academic qualification in ISL.

3. The Claimant holds a PhD in Deaf education.

4. On 7 March 2022, the Claimant applied for a position which the Respondent organisation had advertised. The advertised position was “Advisor Deaf/Hard of Hearing”. The Claimant was well qualified for this position, given that he has a PhD in deaf education and is a fluent ISL user.

5. The Candidate Information Booklet applicable to the said position stated that the Respondent required the successful candidate to have a “qualification in ISL based on the Common European Language Framework or Equivalent” and excellent oral communication skills.

6. The Claimant, like most deaf users of ISL, does not have an academic qualification in ISL, it being his daily language. The Claimant does not communicate orally and uses ISL to communicate.

7. The Claimant was informed on 19 April 2022 that his application had not been shortlisted. The Claimant sought the reasons for this decision and was informed on the 6 th May 2022 that the reason for the Respondent’s decision had been that the Claimant did not have an academic qualification in ISL.

8. The Claimant lodged an internal complaint regarding the Respondent’s decision stating that the criteria contained in the Candidate Information Booklet were discriminatory and that deaf people were far less likely to hold an academic qualification in ISL.

9. The Claimant’s internal complaint was referred by the Respondent to Ms. Caroline McKeon. On 20th June 2022, the Claimant was informed that his internal complaint had been successful.

10. On 22 August 2022, and despite the Claimant’s complaint being upheld, the Respondent informed the Claimant that he could not apply for the position as the recruitment process had closed. The Claimant was surprised to be informed that the recruitment process had closed and that he was not being offered a remedy.

11. The Claimant was denied an opportunity to interview for the position because of criteria being applied by the Respondent which it was significantly more difficult for a deaf person to meet.

12. The Claimant was uniquely qualified for the position being advertised and suffered significant losses as a result of not being shortlisted and interviewed. 

Legal Submission

Employment Equality Act 1998

Indirect Discrimination

1.Section 6 of the Employment Equality Act 1998, as amended (the 1998 Act) provides the definition of discrimination. It states at subparagraph (1):

1.      “(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

2.Section 8 of the 1998 Act prohibits discrimination against an employee or prospective employee in relation to:

(a) access to employment;

(b) conditions of employment;

(c) training or experience for or in relation to employment;

(d) promotion or regrading, or

(e) classification of posts

3.Section 22(1) of the 1998 Act provides the definition of indirect discrimination, in the context of gender discrimination, stating

“(1) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

4. Section 31 of the 1998 Act extends the protection against indirect discrimination to grounds other than gender, with provision for the necessary amendment to the wording of Section 22(1).

5. It is submitted that in the instant case, the majority of the facts are not in dispute. Therefore, it is for the WRC to determine whether the imposition of the requirement for an academic qualification in ISL is indirectly discriminatory against people with a disability.

Burden of Proof

6. Section 85A(1) of the 1998 Act provides the following in respect of the burden of proof in claims of discrimination, harassment, sexual harassment and victimisation:

“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.”

7. In Nathan v. Bailey Gibson Limited [1998] 2 IR 162 the Supreme Court, in analysing the burden of proof (albeit an older wording) in equality cases, held

“It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the complainant's sex.”

8. In Southern Health Board v Mitchell [2001] E.L.R. 201 it was held, in respect of the burden of proof,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Statistical Evidence

9. In Stokes v. Christian Brothers High School Clonmel [2015] IESC 13 the Supreme Court, per Clarke J, discussed the evidence, including statistical evidence required to establish a claim of discrimination. It held,

“Therefore, it follows that, as a matter of law, the Director, or a court considering whether a particular disadvantage has been established, must carry out a proper analysis of the extent of any disadvantage at which a protected group has been placed by reason of the ostensibly neutral measure in order to determine whether that level of disadvantage is sufficient to meet the particular disadvantage test. As noted earlier, such analysis necessarily requires some statistical consideration. I, therefore turn to the question of the proper approach to the analysis of disadvantage.”

10. In Homer v. Chief Constable of West Yorkshire [2012] UKSC 15, the UK Supreme Court, per Lady Hale, examined the requirement for statistical evidence in claims of indirect discrimination. In particular, the Court held, that the change in the test from “disparate impact” to “particular disadvantage” was:

“intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages.”

11. The Court in Stokes went on to comment that the relevant statistics may not be readily available to a complainant and that such difficulty was a matter to which the decision maker should have regard in determining whether the relevant burden of proof had been met.

12. The Court of Justice of the European Union (CJEU) Schuch-Ghannadan v. MedizinischeUniverstität Wien C-274/18 when dealing with gender discrimination, held that Article 19(1) of the Gender Recast Directive 2006/54/EC must be interpreted as meaning that an employee who considered him or herself indirectly discriminated against based on gender could substantiate manifest discrimination on the basis of “general statistical data concerning the job market in the Member State concerned”, if the employee could not “be expected to produce more precise data regarding the relevant group of workers, such data being difficult to access or unavailable” (para 56). It had been noted (at para 55) that the CJEU had previously held that the inaccessibility of information or relevant statistical data could risk compromising the achievement of the burden of proof provisions (Kelly C-104/10).

13. In NBK Designs Ltd v. Inoue EED0212 [2003] ELR 98 the Labour Court held that:

“The procedures of this Court are intended to facilitate parties whether they appear represented by Solicitor or Counsel, Industrial Relations Practitioners or unrepresented, alike. It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience.”

14. It is submitted on behalf of the Claimant that the evidence submitted by him establishes that the Respondent’s actions in applying a criterion which required an academic qualification in ISL, is indirectly discriminatory in that it operates to create a disadvantage to deaf applicants for employment with the Respondent. It is submitted that the evidence submitted by the Claimant and his witness, in oral and documentary form, discharges the evidential burden pursuant to Section 85A of the EEA, and that the onus therefore shifts to the Respondent to objectively justify the requirement.

15. It is submitted that the Claimant has submitted expert evidence which confirms that the requirement to have an academic qualification in ISL, is a requirement that disproportionately affects deaf applicants for employment. It is submitted that the evidence submitted by the Claimant in this regard is sufficient to discharge the initial evidential burden placed on the Claimant and that the burden therefore shifts to the Respondent to justify its requirement for a qualification in ISL.

Objective Justification

16. The test for whether a particular measure or requirement can be objectively justified is set out in Bilka-Kaufhaus GmbH v. Karin Weber von Hartz (C-170/84) [1986] ECR 1607 (and endorsed by the Labour Court in NBK Designs Ltd v. Inoue EED0212 [2003] ELR 98). The test set out by the ECJ was whether the measures concerned were necessary owing to

“a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end”.

17. In a number of cases the distinction has been drawn between a “real need” on the part of an employer, or a mere convenience. In Price v. Civil Service Commission IRLR [1978] and Steel v. Union of Post Office Workers [1977] IRLR the UK Employment Appeals Tribunal stressed the distinction between a measure being convenient to an employer and being necessary so as to ground a defence of objective justification.

18. In the instant case, it is submitted that the requirement imposed by the Respondent cannot be considered necessary having regard to a real need on the part of the Respondent.

19. It is submitted that it was open to the Respondent herein to ascertain the Claimant’s level of competence by other means such as by practical interview process. The Claimant and his witnesses will give evidence regarding his level of fluency in ISL.

20. It is submitted that in circumstances where there were less discriminatory measures available to the Respondent, which would have achieved the same objective (ensuring that applicants were sufficiently skilled), the Respondent cannot rely on the defence of objective justification.

Redress

21. Section 82(4) of the Employment Equality Act 1998 provides an upper limit in respect of redress under the Act. It states,

“The maximum amount which may be ordered by the F142[Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000, or

(b) in any other case, €13,000.”

22. Therefore, the limit with respect to compensation in the Claimant’s case is, in accordance with the express provisions of Section 82(4) ((b), express provisions of Section 82(4)((b), €13,000. 23. It is submitted that the evidence in the case discloses a loss to the Claimant far in excess of the €13,000 limit provided by Section 82(4)(b).

24. Directive 2000/78/EC1 provides at Article 17 that

“The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.”

25. In Case C-180/95 Draemphael [1997] ECR I-2195 the ECJ considered, in the context of Directive 76/207/EEC, whether it was lawful for a Member State to fix an upper limit, in that case of 3 months’ salary, in respect of discrimination suffered at the point of access to employment. The Court found that while the setting of such a limit may be permissible where a respondent employer could show that the claimant would not have been successful in their application even if no discrimination had taken place, it was not permissible where the claimant would have been successful in the absence of the discriminatory act. It stated,

“the Directive precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, prescribe an upper limit of three months' salary for the amount of compensation which may be claimed by an applicant discriminated against on grounds of sex in the making of an appointment where that applicant would have obtained the vacant position if the selection process had been carried out without discrimination.”

26. It is submitted that in the instant case, the Claimant was clearly well qualified for the advertised role and would have been successful in the absence of the discriminatory requirement.

27. In Case C‑378/17 Minister for Justice and Equality & Commissioner of An Garda Síochána v. Workplace Relations Commission, the ECJ stated

“It follows from the principle of primacy of EU law, as interpreted by the Court in the case-law referred to in paragraphs 35 to 38 of the present judgment, that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.”

28. It is submitted therefore that the WRC Adjudicator should apply the provisions of Article 17 of Directive 2000/78/EC and disregard the upper limit imposed by Section 82 of the Employment Equality Act 1998, given that it is inadequate to compensate the Claimant in the within proceedings and given the requirement that sanctions be effective, proportionate, and dissuasive.

Conclusion

29. It is submitted that the Claimant herein was subjected to discrimination on the grounds of disability. It is submitted that the Claimant has supplied sufficient evidence to the WRC to discharge the evidentiary burden placed on him and that the burden therefore shifts to the Respondent. It is submitted that the Respondent cannot objectively justify the discriminatory requirement as other less discriminatory means of achieving the same objective were available to the Respondent.

Background

1. By complaint form received on the 9 December 2022 the Complainant lodged a claim of discrimination under the Employment Equality Acts alleging that he has been discriminated on grounds of disability following an unsuccessful application for a position with the Respondent.

2. The National Council for Special Education (“NCSE”) was set up to improve the delivery of education services to a person with special educational needs (“SEN”) arising from disabilities. The Respondent advertised an open competition for the role of Advisor Deaf/Hard of Hearing (ISL) in the National Council for Special Education with a closing date of 7 March 2022. The job specification for the role confirmed that the focus of the role was to build capacity in ISL among teachers, SNAs, other school staff and NCSE professionals who deliver educational support for children whose primary means of communication is ISL. The duties of the Advisor include some of the following:

• As a member of the NCSE regional team, advise and assist in the development of strategies and programmes to support the embedding of ISL in NCSE education support and service delivery.

• Work with other NCSE team members to deliver supports and services through ISL.

• Support schools in the development of a whole school approach to meeting the needs of children who are deaf/hard of hearing whose primary means of communication is ISL.

• Support and upskill school staff (teachers, NSAs etc) in ISL to help ensure the delivery of the curriculum to this cohort of children, along with their access to and participation in school activities.

• Support the school and other professionals in planning for the transitioning of students who are deaf/hard of hearing into the school setting and onto other education placements as required.

• Be available to support the SCNO in supporting parents regarding transitions into schools.

• Participate/undertake relevant professional training and development programmes.

3. Section 3 of the candidate information booklet provides the essential criteria for the role:

a. A qualification of at least level 8 on the National Framework of Qualifications relevant to the provision of services to students/children with disabilities or an equivalent professional qualification.

b. At least two years post qualification experience working in the area of education of children with special educational needs, or the delivery of other services to people with disabilities.

c. Hold a qualification in ISL based on the common European language framework or equivalent.

In addition there are a wide range of other requirements including having achieved a high level of proficiency in ISL and an oral level of proficiency in English/Irish, to have excellent communication skills, both oral and written, have excellent interpersonal, operational, organisational skills and problem solving skills.

4. The candidate information booklet applicable to the position was attached to the submission.

5. The Complainant was informed on 19 April 2022 that his application had not been shortlisted. By email dated 21 April 2022 the Complainant sought to make an informal complaint regarding his application, and he sought additional relevant information on how the decision was reached. On 6 May 2022 Jennifer Younger HR Recruitment wrote to the Complainant giving him further information on the decision that was made regarding his application for the post. In that email she confirmed that she had reviewed the documentation and advised as follows:

• An assessment board was convened to review all applications.

• The board used the person specification in the competition booklet as the shortlisting criteria.

• Specifically, they reviewed each application and determined if the information in the application form demonstrated that an applicant had met the essential requirements set out in the competition booklet. The email went on to say “in your application it was noted that there was no qualification in ISL listed albeit that you are a native ISL user. The board determined that the criteria was specific in wanting a formal qualification in ISL and that you had failed to demonstrate in your application that you meet this requirement. As a result of this, the board did not shortlist you for interview and we consequently sent you the notification confirming that your application would not be progressing.”

6. By email dated 11 May 2022 the complainant sought a formal review of the decision under Section 7 of the CPSA Guidelines on the basis that the essential requirement on ISL qualification “is wrong because it is restrictive to certain groups of people and effectively excludes deaf people”. This was acknowledged by email on the same day, 11 May 2022.

7. A formal review was carried out by Ms Caroline McKeown, Assistant Principal Officer, in which she interpreted “or equivalent” as meaning an ISL qualification or equivalent rather than an equivalent qualification. She therefore did not uphold the original decision. Evidence will be given at the hearing as to why this interpretation is fundamentally flawed given the clear criteria set for the role. The Complainant was informed of this outcome when the recruitment process had already closed.

Legal Submissions

8. Section 6 of the Employment Equality Act 1998 as amended provides the definition of discrimination at subparagraph 1

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where –

a. 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 (in this Act referred to as the ‘discriminatory grounds’) which-

i. exists,

ii. Existed but no longer exists.

iii. May exist in the future, or

iv. Is imputed to the person concerned.

9. Section 8 of the 1998 Act prohibits discrimination against an employee or prospective employee in relation to access to employment.

Burden of Proof

10. Section 85A(1) of the 1998 Act provides the following in respect of the burden of proof in claims of discrimination:

‘where in any proceedings facts are established by or on behalf of a complaint 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.’

11. In Southern Health Board v Mitchell 2001 ELR 201 it was held in respect of the burden of proof ‘

the first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove on the balance of probabilities, the primary facts on which they rely and seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment’.

Objective Justification

12. Section 22(1) of the Act states:

(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender [marital status, family status etc] at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to . . . unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” (emphasis added)

13. The Respondent will rely on the classic analysis of objective justification, as per the case of Bilka-Kaufhaus GmbH v Karin Weber von Hartz1 , wherein the Court of Justice stated: Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of woman than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex . . . It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a workers’ sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, (emphasis added) are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119” ((C-170/84) [1986] E.C.R. 01607, at para.33).

14. The case of Bilka was applied in the widely quoted case of Marie Inoue v NBK Designs Ltd (2003] 14 E.L.R. 98), the Labour Court stated:

The wording of section 22(1)(c) must be interpreted as contemplating the three tiered test for objective justification set out by the ECJ in Bilka-Kaufhaus. This test requires that the court be satisfied that the impugned measures:

(a) correspond to a real need on the part of the undertaking,

(b) are appropriate with a view to achieving the objective pursued, and

(c) are necessary to that end.

15. It is accepted that the view to be taken in considering the objective justification of the actions of the Respondent is an objective one. However, in considering the real needs of the business, it is submitted that the Respondent is entitled to take a subjective view in determining what the real needs of the business are. The Respondent will rely on the Labour Court decision in The Minister for Justice, Equality and Law Reform v Therese Hand (DEE985) where the Court stated:

As was found in Clymo v. London Borough of Wandsworth (1989 IRLR 241EAT), this Court finds that it is for the employer, acting reasonably, to decide what is required for the purpose of running the organisation for which it is responsible.

16. In this regard, the Appellant will rely on the case of Patricia Conlon v University of Limerick ([1999] 10 E.L.R. 155 where McCracken J stated:

In my view, therefore, the Labour Court adopted the correct approach in having regard to the circumstances of the particular case, and holding that in those circumstances the requirements were either reasonable or essential, depending upon which part of the wording one chooses, but in any event, in my view this finding was sufficient to objectively dispose of any question of discrimination.

The Role

17. The new role of Advisor Deaf/Hard of hearing (ISL) was created in order to provide for the building of capacity in using ISL across the school community and all aspects of school activity. The focus of the new role was to build capacity in ISL across the school community including teachers, SNAs, other school staff and NCSE and any PS professional who deliver educational supports for a cohort of children whose primary means of communication is ISL. The new post of Advisor Deaf/Hard of hearing (ISL) was created to meet this need and support the delivery of a continuum of support for children who are deaf/hard of hearing to access education through ISL from the point of diagnosis by a relevant professional through to the end of post primary education. It was envisaged that a number of these appointments would be made nationally, and their work would complement and align with work of other advisory supports provided by the NCSE to schools and families. The post was to assist not only mainstream schools but also provide specific ISL support to special classes and to the special schools that cater for children who are deaf/hard of hearing.

18. The Respondent requires formal qualification for the specific role of ISL advisor for several reasons.

Competency and Skill Validation

19. Formal qualification, such as degrees or certifications serve as clear and objective evidence that an individual possesses the necessary knowledge and skills to perform the role of ISL advisor effectively. A formal qualification validates a candidate’s expertise and competence and provides a solid foundation for advising on the diverse aspects of Irish Sign Language.

Quality Assurance

20. Formal qualifications are a measure of quality assurance. They provide a level of confidence to the NCSE, the Department of Education, to teachers, students and parents that the ISL advisor has received the necessary training and education to be effective and capable of meeting the requirements of the role as specified in the job description and as outlined in the recruitment booklet. Specialisation and Expertise:

21. Formal qualifications are necessary to demonstrate the necessary expertise in this specialised field. A formal qualification ensures comprehensive understanding of the structures, linguistics and cultural nuances of Irish Sign Language. It goes beyond native ISL fluency, equipping ISL advisors with theoretical knowledge, teaching methodologies and pedagogical skills crucial for effective guidance and support as an ISL advisor in the NCSE. Standardisation:

22. Formal qualifications standardise the training and education of individuals, ensuring a consistent level of knowledge and skills across the organisation.

23. A formal qualification in Irish Sign Language can be achieved by a deaf or a hearing person and therefore it is simply incorrect to assert, as the Complainant has that it “effectively excludes deaf people”. In Trinity College Dublin, they strongly encourage applications from deaf and hard of hearing students to their Bachelor in Deaf Studies. It is submitted that there are many career opportunities where a certain qualification is required in a language notwithstanding those applying are native speakers.

24. The Complainant states that it was ‘open to the Respondent” to “ascertain the Claimants’ level of competence by other means such as by practical interview process”. It is submitted that this is simply incorrect. The interviewers are not qualified to assess whether the Complainant has the competencies that are necessary to achieve ISL qualification. To achieve the qualification- it is necessary not only to have ISL fluency, but they also have to be equipped with the necessary theoretical knowledge, teaching methodologies and pedagogical skills crucial for effective guidance and support as an ISL advisor in the NCSE. The detail of what is required for this qualification is detailed in Module Handbook 2023-2024 for the Bachelor of Deaf Studies, Trinity College Dublin.   The Respondent believes the modules, particularly relevant for the role of Advisor Deaf/Hard of Hearing (ISL) are:

• Modules in Irish Sign Language;

• Modules on Deaf Education;

• Modality and First and Second Language Learning;

• Introduction to Linguistics;

• Introduction to Signed Linguistics 1 & 2;

• Translation and Interpreting: Philosophy and Practice 1 & 2;

• Introduction to ISL Teaching;

• ISL Teaching and Assessment; and

• Introduction to Interpreting.

25. The role of the interviewers is to assess whether the candidates, having met the essential requirements, have also the following:

A. Have proficiency in ISL and the following is relevant in this regard:

(a) The successful candidates will have achieved a high level of proficiency in Irish sign language and an oral level of proficiency in English/Irish;

(b) The successful candidates will demonstrate commitment to engaging in ongoing professional learning in order to enhance the capabilities and knowledge appropriate to the role.

B. Have knowledge and understanding of the ISL Act 2017 and its obligations on public bodies.

C. Have familiarity, common knowledge and understanding of the needs and culture of the deaf/hard of hearing community.

D. Have experience of working with children who are deaf/hard of hearing and their families in a service or education environment.

E. Have experience of working with other professionals who support children who are deaf/hard of hearing.

F. Demonstrate maturity of judgment and effect of interpersonal and communication skills.

G. Have the ability to assess and deal with difficult issues in a realistic and constructive manner, particularly in face to face situations.

H. Have excellent interpersonal, operational, organisational and problem solving skills

I. Have excellent communication skills, both oral and written.

J. Have an open and flexible approach to work.

K. Have a good understanding on special education needs, issues and services.

L. Be able to work effectively as a team member under the direction of the Team Manager.

M. Be able to make decisions within the parameters set down by MCSE Management.

N. Be able to work on their own initiative, including the ability to manage time effectively and to manage and prioritise workloads.

O. Have the capacity to develop a strong network of relevant local and other contacts inside and outside the organisation.

P. Have the capacity to develop and implement innovative but workable solutions within the prevailing Department of Education Policy parameters, to unusual problems/situations which may arise from time to time.

Q. Have an understanding and commitment to the administrative aspects of the role, including records management.

26. It is submitted that there is clear objective justification for the qualifications required for the role and therefore there is no discrimination.

27. Evidence will be given of the role, the requirements, and the reason why the formal reviewer was incorrect in her determination.

Redress

28. It is submitted that the statement that the Complainant “was clearly well qualified for the advertised role and would have been successful in the absence of the discriminatory requirement” is simply extraordinary. The case law is absolutely clear that it is not for the Court or an Adjudication officer to take a view on the merits of candidates for a role (O’Higgins v UCD [2013] ELR 146) The Complainant is asking the Adjudication Officer to determine his qualifications and experience meet the requirements without reference to any other candidates. It is submitted that this is fundamentally flawed and outside the jurisdiction of a discrimination claim. The Adjudication Officer’s only role is to ensure that the essential criteria is not tainted by unlawful discrimination.

The Complainant is deaf and has been so since childhood. He is fluent in Irish Sign Language (ISL) which is his native language, as it is for many deaf people in Ireland.

On 7th March 2022 the Complainant applied for the position of Advisor Deaf/Hard of Hearing (ISL) with the National Council for Special Education (NCSE).

On 19th April 2022, the Complainant received a notification from the NCSE that his application had not been shortlisted. On 21st April 2022 the Complainant requested an informal review explaining the denial of his application. On 6th May 2022, the NCSE issued a response stating that “the board determined that the criteria was specific in wanting formal qualification in ISL and that you failed to demonstrate that you meet this requirement”.

The Candidate Information Booklet (Section 3, Page 5) reads as follows:

a)     A qualification of at least level 8 on the National Framework of Qualifications relevant to the provision of services to students/children with disabilities or an equivalent professional qualification.

In the notice of 19th April 2022, the NCSE indicated in this notice that a review could be conducted pursuant to Section 7 of the Commission for Public Service Appointments Code off Practice and that the board’s decision could be overturned. The notice provided no deadline for this review.

On 11th May 2022 the Complainant submitted a request for this review on the basis that the NCSE’s requirement for a formal qualification in ISL was incorrect.

In response on 30th May 2022 the NCSE informed the Complainant that his case had been referred to a “designated decision maker”. The complainant was also informed that he could expect a decision letter no later that 15th June 2022.

On 22nd June the NCSE responded via email with the result of the review. They relayed the designated decision makers conclusion that the Complainant met the requirements of a native ISL user and that his complaint was upheld. The decision stated the  complainant’s status as a native ISL user , and noting their additional experience  meets the essential criteria” of the application and that the original decision to reject his application was “not upheld in this case”.

No remedy was offered by the designated decision maker or the NSCE and the rejection of his application was not overturned.

I note that point 7.2.5 of the Code of Practice for Appointments to Positions in the Civil and Public Service states the following:

“The reviewer’s decision will be considered by the administrators of the selection process in the first instance. Where a formal reviewer has decided not to uphold the original decision, a decision must be made by the HR unit on appropriate next steps. The reviewer’s decision is final with no further recourse to review from the Office Holder”.

I believe in the instant case that the respondent has decided to ignore this.

I have fully considered the evidence and submissions from both the Complainant and the Respondent and now decide in favour of the complainant. I believe the Respondent’s actions amount to indirect discrimination against the complainant.

The complaint is well-founded.

Redress.

As pointed out by the complainant’s representative:

Section 82(4) of the Employment Equality Act 1998 provides an upper limit in respect of redress under the Act. It states,

“The maximum amount which may be ordered by the F142[Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000, or

(b) in any other case, €13,000.”

Article 17 of Directive 2000/78/EU PROVIDES:

Sanctions.

Member states shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. Member States shall notify those provisions TO THE Commission by 2nd December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.

I now order the Respondent to pay compensation to the Complainant in the amount of €40,000. Such payment should be made within 42 days from the date of this decision.

I have fully considered the evidence and submissions from both the Complainant and the Respondent and now decide in favour of the complainant. I believe the Respondent’s actions amount to indirect discrimination against the complainant.

The complaint is well-founded.