EDA024

• Over the past ten years the respondents have conducted competitions for appointment to Clerical Officer posts in the Civil Service which are confined to people with disabilities. In order to participate in the competition, the applicant must be registered with the National Rehabilitation Board (the NRB).

• The complainant suffers from a mental health disorder (schizophrenia) and is registered with the NRB. He applied for the post of Clerical Officer (typing duties) through the confined competition. The complainant was one of 798 applicants who had a diverse range of disabilities. The complainant had previously applied unsuccessfully in an open competition for the same post.

• The selection process comprised three stages. These consisted of a written test (Stage 1), a structured interview (Stage 2) and an assignment or pre-employment check stage (Stage 3). In this latter stage, the candidates’ suitability on health and character grounds is verified and a placement made.

• The complainant successfully sat the written test and was placed 94th out of 600 candidates. He then sat a typing test in which he was also successful. However, in the case of the interview, it was held that the complainant did not reach the required standard. Consequently, he was deemed as unsuitable for appointment to the post for which he had applied.

The Complainant’s case.

It is the complainant’s case that he was discriminated against relative to persons who do not suffer a disability and also relative to persons who suffer from a different disability. It is alleged that the respondents had an overt or covert prejudice against persons who suffered from schizophrenia. His representative claimed that this is the only reasonable explanation for the respondent’s decision to deem the complainant unsuitable for appointment.

In his submission to the Court, the complainant’s representative contended that the aims of the structured interview conflicted with the Code of Practice for the Employment of People with Disabilities in the Civil Service. He said that the stated purpose of the interview is to assess the candidate’s ability to perform the functions of the post to be filled. The complainant's representative pointed out that the Code of Practice provides that consideration of any question concerning the employment of people with disabilities should proceed from a position of presumed ability unless otherwise demonstrated.

The complainant’s representative further contended that the role of the structured interview in the selection process is in conflict with Stage 1 of the process. The complainant's representative submitted that one of the stated purposes of the interview is to establish if candidates have particular skills which are regarded as necessary for the performance of the tasks associated with the post to be filled. The complainant’s representative submitted that the skills being tested for are not necessary for employment in the post of Clerical Officer (typing duties).

It was submitted on behalf of the complainant that the role of a Clerical Officer and the skills required for that post are set out in detail by the respondents in their communication to candidates at Stage 1 of the competition. These include perfunctory skills, which are tested at Stage 1, and dynamic skills which are tested at Stage 2. In the open competition in which he had previously participated, the complainant was found to be strong in dynamic skills and weak in perfunctory skills. In the confined competition the complainant was found to be sufficiently strong in perfunctory skills but failed at Stage 2 because of a purported lack of dynamic skills. Finally, in relation to the interview, it was alleged that the complainant was interviewed in a negative and oppressive manner. It was further alleged that the standard used by the respondents in the interview was both vague and secretive.

The complainant’s representative prepared and presented a statistical analysis of the results of the competition which, it was claimed, shows that applicants whose disability was classified as schizophrenia were unsuccessful to a disproportionate degree relative to candidates with other disabilities. On this point, the complainant’s representative submitted statistics which indicated the following:

• Of the 163 candidates in the disability cohort, there were 5 failures or 3%.

Respondent's Case.

On behalf of the respondent it was submitted that the complainant could not sustain a complaint that he was discriminated against relative to people without a disability in relation to a competition confined to people with disabilities.

The respondent denied that there was any degree of unfairness in the selection process or that those involved in the selection process had any discriminatory disposition towards people with schizophrenia.

In relation to the statistical analysis put forward on behalf of the complainant, the respondent submitted that the numbers involved in the schizophrenia category are small and this affects the statistical significance of the result. In support of this submission the respondent referred to the decision of this Court in DeterminationDEP993 – Irish Aviation Authority and IMPACT - issued on 30th September, 1999.

Conclusions of the Court.

The Court accepts that in respect of the competition to which the complaint relates, the complainant cannot maintain a claim that he was discriminated against relative to people without a disability. Such discrimination could only arise if the complainant was treated less favourably that an actual identifiable candidate without a disability. The competition was confined to candidates with disabilities, and there was no candidate without a disability who could have received more favourable treatment on which a claim of discrimination could be grounded.

Discrimination on the disability ground can also occur where a person with a particular disability is treated less favourably than a person with a different disability. It is claimed that the complainant was treated less favourably than other candidates with a disability other than schizophrenia and that this less favourable treatment was because he classified his disability as schizophrenia.

In order to succeed, the complainant must first satisfy the Court on credible evidence that he was treated less favourably in the competition than other candidates with a different disability. It is only if that burden is discharged that the Court should proceed to consider if a causal link existed between the less favourable treatment so established and the complainant’s disability. In that regard, Counsel on behalf of the respondent conceded that the burden of proof in this case would shift to the respondent if the complainant makes out a prima-facie case of discrimination.

In considering if the complainant was treated less favourably than a candidate with a different disability, the Court has had full regard to the careful and eloquent submissions made by his representative in relation to the conduct of the structured interview. Whilst the Court has no doubt that these submissions are based on a thoughtful and sincere analysis of all the circumstances surrounding the interview, as seen from the perspective of the complainant’s representative, they remain mere assertions which cannot be accepted as evidence on which the Court could base findings of fact.

Statistical evidence is frequently relied upon in discrimination cases, although usually where the discrimination alleged is indirect. It is noted that in the instant case the complainant’s representative has expressly stated that he is not alleging indirect discrimination.

The statistics produced on behalf of the complainant relate to the proportion of unsuccessful candidates who classified their disability as schizophrenia relative to those with other forms of disability generally, and those with other forms of mental disability. They appear to show that those who gave their disability as schizophrenia were disproportionately unsuccessful to a significant degree. This, it is claimed, is evidence of a bias on the part of the respondents against people with schizophrenia.

Statistical evidence must be approached with a degree of caution. In particular, the Court must be satisfied that the statistics are valid and reliable, that is to say, the Court must assess whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant (seeEnderby v Frenchay Health Authority [1993] ECR 1-15535, par 17andR v Secretary of State for Employment, ex party Seymore –Smith [1999] ECR 1-626, par 62)

The statistics relied upon relate to eight candidates who were classified as suffering from schizophrenia, three of whom failed in the competition. In the Court’s view, the numbers involved and the fact that the statistics relate to only one competition means that the possibility of distortion by purely fortuitous or short-term phenomena cannot be ruled out. The position might be different if, notwithstanding the small number involved, the figures showed a persistent and relatively constant disparity over a number of competitions between those with schizophrenia and those with other forms of disability.

In these circumstances, the Court cannot accept that the statistical evidence goes far enough to avail the complainant.

Determination

For all of the reasons set out above, the Court finds that the respondent did not discriminate against the complainant on the disability ground contrary to the provisions of the Act. Accordingly, the decision of the Equality Officer is affirmed and the appeal disallowed.



Signed on behalf of the Labour Court



Kevin Duffy
7th October, 2002______________________
G.B/MB.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.