Mr. C(Represented by Conor Power B.L., instructed by Killilea Reynolds &
Whelan, Solicitors) -v- A Distribution Company(Represented by Tabitha Wood B.L., instructed by Sean Mac Bride, Solicitor)
1. CLAIM
The case concerns a claim by Mr. C that his employer directly discriminated against him on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to a competition for the post of postal sorter in October 2001 and when he was prohibited from competing for the post of full time transport coordinator in 2002.
2. BACKGROUND
2.1 The complainant submits that the respondent has consistently discriminated against him on the disability ground since 1997. More recently in October 2001, the complainant applied for the post of postal sorter and he was unsuccessful in the competition. He submits that he was discriminated against in the selection process. He also alleges that he was discriminated against when he was prohibited from applying for a competition for a post of transport co-ordinator in June 2002. The respondent denies the complainant's
allegations of discrimination.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 30 April 2002. On 21 November 2002, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 3 February 2003 and from the respondent on 16 September 2003. Supplementary submissions were subsequently received from both parties. A joint hearing of the claim was held on 28 January 2004.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant is employed as an auxiliary (part-time) postal sorter with the respondent since November 1996. He submits that he was discriminated against on the disability ground as he was refused the position of a full time permanent postal sorter and debarred from applying for the position of transport co-ordinator.
3.2 The complainant was diagnosed with psoriatic arthritis in 1994 and has undergone treatment for the condition since that date. Prior to the operation of the 1998 Act, the complainant was on two occasions refused a full time post on the basis of his medical condition. The complainant has often worked overtime which shows that he is medically fit for a full-time post. The respondent offered the complainant severance terms in July 2001 which to the complainant's knowledge, no other person was offered thereby demonstrating that the complainant was treated differently to others.
3.3 In 2001, the complainant applied for the post of postal sorter and was invited for interview on 24 October 2001. The complainant was not successful as he did not reach the required standard. In 2002, the complainant applied for the post of full time transport co-ordinator. By letter dated 6 June 2002, he was informed that because of a serious offence recorded against him in 1998, his application for the competition could not be entertained. The complainant submits that the real reason he was refused access to the competition was because of his disability.
3.4 The complainant was informed by letter dated 15 April 2002 that he was eligible to enter an internal competition for a trip to the World Cup. Entry was only open to employees with a 100% work attendance rate during 1 April 2001 to 31 March 2002. The complainant was eligible because he "achieved a nil sick-absence in this period."
3.5 The complainant claims that he has been directly and indirectly discriminated against on the grounds of disability contrary to section 6, 8(1) and 31 of the Employment Equality Act, 1998. The complainant submits that he was denied the post of full time permanent postal sorter and he was deemed ineligible for the post of transport co-coordinator because of his disability. The complainant's service record with the respondent was satisfactory from a medical viewpoint. He was deemed fit by his own doctor and his attendance record was exemplary, even when undertaking overtime work and he has taken no sick leave because of his disability. This shows he was competent and available to undertake the work in question in accordance with section 16(1).
3.6 It is further submitted that at no stage did the respondent consider any method of reasonable accommodation which in particular, it ought to have done by reviewing his medical file after the entry into force of the 1998 Act as was its obligation under section 16(3) of the Act. It submits that this would give rise to no more than a nominal cost given the size of the respondent's enterprise.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant is employed as a permanent auxiliary postal sorter. He alleges discrimination contrary to section 6, 8 and 31 of the Employment Equality Act, 1998. The discrimination is alleged to have taken the form of the refusal of an appointment to a panel from which full time permanent postal sorters were to be appointed.
4.2 The respondent submits that the complainant's allegations cover a period from 1997 to 2001. The Employment Equality Act, 1998 came into force on 18/10/99. Accordingly, the Tribunal cannot investigate any complaints of discrimination on the grounds of disability prior to that date.
4.3 The complainant was disciplined arising out of a physical and verbal assault perpetrated on another employee on 8 October 1998. A serious offence was notified to the complainant and signed by him on 4 November 1998. The respondent's procedures for dealing with grievances and disputes came into effect in June 1990 and were agreed between the company and representative unions. The complainant is a member of the Communication Workers Union which was one of the representative unions. Under paragraph 3.3 of those procedures serious offences remain on an employee's record for four years. The period of four years runs from the date that the serious offence was notified to the complainant (4 November 1998). The standard custom and practice throughout the respondent group has been to disqualify employees from consideration for promotion where they have a current offence on their employment record. This custom and practice is acknowledged in a letter from the Union dated 25 April 2002.
4.4 In relation to the vacancy for a full time postal sorter in October 2001, it was intended to fill eight vacancies and form a panel from which future vacancies could be filled. Due to an oversight, the Human Resources Unit were mistakenly not advised of the serious offence recorded against the complainant. As a result, this was not taken into consideration when the complainant was interviewed for the position. The complainant was considered for the position on merit and the employees appointed were regarded as more suitable candidates. The issue of the complainant's disability was not considered by the interviewers and was not a factor in their refusal to appoint the complainant. The complainant scored 683.5 points and the success level was 700.5. If the complainant had been successful in the competition and been placed on the panel, his serious offence would have debarred him from appointment as a postal sorter.
4.5 The complainant's complaint relates solely to the position of full time postal sorter in October 2001. The complainant refers to the position of transport coordinator in early 2002. The complainant was not considered for this position because the serious offence awarded to him on 2 November 1998 was still current at the date of the application. The relevant four year period did not run out until 2 November 2002.
4.6 In November 2002, (after the recording of the complainant's serious offence had expired), applications were invited from staff who wished to be considered for inclusion on a panel of reserve drivers. The complainant was amongst those applicants. The complainant underwent the same selection process as other applicants i.e., aptitude test, interview and medical examination. The complainant was successful and is now on the reserve driver's panel.
4.7 The respondent did not discriminate against the complainant on the grounds of disability contrary to section 6, 8 and 31 of the Employment Equality Act, 1998 either directly or indirectly. The respondent requests the Tribunal to dismiss the complainant's claim in full.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly and indirectly discriminated against him on the disability ground in relation to a competition for the post of postal sorter in October 2001 and in relation to access to the competition for transport co-ordinator in 2002. Section 31 of the Act which provides for indirect discrimination has been referred to by the complainant, however, evidence has not been submitted in respect of indirect discrimination. Therefore, in this case, I will consider whether the respondent directly discriminated against the complainant on the disability ground in terms of section 6(g) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the complainant cannot succeed.
5.3 More recently, the Labour Court has stated in relation to the burden of proof:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."2
5.4 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the disability ground. Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(g) that one is a person with a disability and the other either is not or is a person
with a different disability (in this Act referred to as "the disability ground"),
5.5 It is not disputed by the respondent that the complainant has a disability within the meaning of the Employment Equality Act, 1998. The complainant alleges that in October 2001, he was discriminated against when he was unsuccessful in the competition for postal sorter. The complainant also alleges that in June 2002, he was also discriminated against in that he was refused access to a competition for the post of full time transport co-ordinator on the basis of his disability. The respondent denies the allegation of discrimination in relation to the first competition and submits that the complainant was mistakenly allowed to compete as Human Resources in the division which was recruiting were not advised of a serious offence recorded against the complainant which prohibited him from applying for competitions for a four year period from 1998. The respondent also denies the allegation of discrimination in relation to the second competition and submits that there was no discrimination as the complainant was at that time still prohibited from applying for competitions because of the serious offence recorded against him in 1998.
Position of permanent postal sorter 2001
5.6 I will firstly consider the competition for the post of permanent postal sorter in 2001. Ninety-five candidates were interviewed for the post of permanent full time postal sorter in October 2001. The selection process consisted of a performance appraisal and a competitive interview. The respondent had to satisfy itself as to the disciplinary record and sick leave of each candidate prior to interview. The first eight candidates were offered positions immediately. Candidates 9 to 81 were placed on a panel from which future vacancies would be filled. Candidates 82 to 95 were unsuccessful. The complainant was ranked 87 and was therefore in the unsuccessful category. The interview panel consisted of a person who was an Operational Manager and a person from Human Resources. They gave evidence at the hearing that all candidates were asked the same questions from a list of questions drafted by them and a third person from Human Resources prior to the interviews. They did not depart from the list of twenty-two agreed questions that related to five different areas under which candidates were assessed. The interviewers individually marked each candidate out of ten for each question. The areas assessed were Relevant Experience/Knowledge, Communication Skills, Commercial Awareness, General Suitability, and Initiative/Flexibility. A weighting (in effect, a multiplier) was applied to the score achieved under each heading. After the weighting was applied to each question, the marks were sub-totalled. At the next stage of the process, the marks awarded for the performance assessment were also weighted and then added to the sub-total to arrive at the grand total for each candidate.
5.7 I will now proceed to consider the performance appraisal which was an element of the selection process. All candidates were assessed by their managers/supervisors prior to interview under seven headings. The maximum mark which could be awarded under each heading was 5 and the rating from 1-5 is categorised according to a schedule at the bottom of the assessment report. For example, 1 is an unsatisfactory rating, 2 is below average, 3 is average, 4 is above average and 5 is superior. A weighting of 6 was applied to the total marks awarded for the performance assessment. The complainant was assessed by his manager and the assessment was then countersigned by another person of the same rank as the assessor. The complainant received a mark of 3 which was a rating of average for three areas which were Cooperation-Peers, Co-operation- Management and Courtesy and Tact. He received a mark of 5 for Dependability which is categorised as a superior ranking meaning greatly exceeds the required level and is among the best performers in this category. He received a marking of 4 for Appearance, Manner and Dress which is categorised as an above average rating. The complainant received a mark of 2 for the areas of Quality of Work and Quantity of Work. Two is categorised as a below average rating. The complainant received a total of 132 marks for the assessment when the weighting was applied. The maximum possible mark under this heading was 210. The total mark which could be achieved in the selection process comprising the assessment and interview was 1270. The assessment process therefore had the potential to comprise 16% of the total marks in the competition.
5.8 The person who assessed the complainant gave evidence at the hearing. He submitted that he did not consider that the complainant had a disability within the meaning he would attribute to disability. He considered that the complainant had "a walking difficulty" and that he walked slower than others. There was an amount of movement required for the job that the complainant did and the complainant never said that he could not do the work. In relation to the low mark for quality of work, he said that he formed the view on the matter over a period of time. He gave an example of the complainant not completing a task and said that he might wander and he tended to keep moving. In the course of his work, he would have spoken to other employees whose performance was not satisfactory but submitted that he never approached the complainant in relation to his work performance and he would have been embarrassed to do so. In evidence, he submitted that the complainant's feet might have affected his performance and in crossexamination, he submitted that 'lazy' was not a word he would use for the complainant.
5.9 I have considered the evidence given by the assessor and it appears that he considered that there was an issue with the complainant's performance and he therefore gave him a poor rating for quality and quantity of work. He failed to approach the complainant in relation to his performance as he would have been embarrassed. He submitted that he had spoken to other employees whose performance he considered was poor. He did not consider the complainant lazy and considered that the poor performance as he saw it might have been to do with his feet. In my view, it was unfair to the complainant for the assessor/manager to consider that there was an issue with his performance and fail to apprise him of the matter, thereby failing to give him an opportunity to improve. He also treated the complainant differently relative to other persons without a disability as the supervisor stated in evidence that he had spoken to others who he considered had performance issues. The assessor also submitted that he had not received any disability awareness training. I consider on the balance of probability that the reason that the complainant received a low ranking in relation to quality and quantity of work was because of his disability and as a result he was discriminated against in the marking on the performance assessment report.
5.10 In evidence, the assessor stated that he had hoped the complainant would get the post he was competing for as there was more of a sitting down element to it and it would suit him better. The performance assessment contained a section on General Assessment which stated "Describe applicant's main job performance strengths" and "Describe applicant's main areas for development:" Alongside the first heading, the supervisor wrote "always available" and wrote "see Chief Medical Officer" alongside the second heading. At the hearing, he stated in evidence that he felt the complainant's medical state would come into play if he got the job. He stated that he wanted the division which was recruiting to know of the medical situation with the complainant before appointing him. He submitted that the comment was not intended for the interview panel and was intended to only come into play if the complainant was successful. In my view, the reference on the complainant's assessment was a reference to his disability and should not have been recorded on the assessment form. The only impact such a comment could have had was a negative one if the complainant was successful in the competition and I consider that it is further evidence that the complainant's disability was uppermost in the assessor's mind when completing the assessment.
5.11 Neither the interviewers nor the person who assessed the complainant had any equality training. At the time of the competition in issue, the respondent did not have an Equality Policy referring to the nine grounds of discrimination or a Disability Policy. A Disability Policy and an Equality Policy were published by the respondent in April 2003. Taking the assessor's evidence into account, the comment on the performance assessment, the lack of equality policies and training for staff, I consider that the complainant has established a prima facie case of discrimination on the disability ground in the selection process for the position of full-time permanent postal sorter which the respondent has failed to rebut.
5.12 I must now consider whether the discrimination impacted on the outcome of the selection process. The complainant achieved a mark of 551.5 for his interview and a mark of 132 for his assessment giving a total of 683.5. The last candidate placed on the panel achieved a total mark of 700.5 and the respondent submits that 700.5 was the cut-off point for success An examination of the sub-total of the marks awarded for the interview to the various candidates reveals that a number of candidates who achieved less marks at interview than the complainant were successful in the competition when the marks for their assessment were added to give the grand-total. This can be stated in respect of successful candidates numbered 71, 74, 75, 77, 78, 80 and 81. The complainant's disability clearly affected the marking he received in relation to the performance assessment report which impacted on the overall marks achieved by him in the selection process and subsequently affected his ranking on the panel.
Full-time transport co-ordinator 2002
5.13 The respondent submits that in accordance with its custom and practice, when a person has a serious offence recorded against them, they are not allowed access to competitions for a four year period. It submits that was the reason that the complainant was not permitted to compete for the post of full-time transport co-ordinator in 2002. The complainant submits that the real reason he was prohibited from competing was because of his disability. It was not in dispute that a serious offence was notified to the complainant on 2 November 1998 in respect of a disciplinary incident which occurred on 8 October 1998. I have examined a copy of the respondent's procedures for dealing with grievances and disputes dated June 1990. It provides that formal disciplinary action will usually be one of the following:
"Oral reprimand, Written reprimand, Serious offence or Dismissal."
The policy further provides that a serious offence may be given with or without penalty and can include deferment of increment and reduction in pay/rank. It does not refer to being denied access to competitions.
5.14 The respondent's submission dated 22 January 2004 states that there was no discrimination and the complainant was not considered for a number of positions including the transport co-ordinator's position in 2002 because the serious offence awarded to him on 2 November 1998 was still current at the date of the application. It further submits that the four year period did not run out until 2 November 2002. In relation to the competition, the complainant was advised by letter dated 6 June 2002 that "Because of the serious offence recorded against you during 1998, I regret to inform you that your application for this competition cannot be entertained." I note that in a letter dated 18 August 2000 sent to the complainant in relation to another competition, it is stated "..... I wish to advise that, as the serious offence recorded against you is still current, and effectively debars you from promotion/competition for four years from 8th October 1998, the decision of 27th July to cancel your candidacy must still stand." It appears therefore that there is a discrepancy between the letter and the respondent's submission as to the operative date of being prohibited from competition/promotion.
5.15 The respondent submitted in evidence copies of letters sent to three individuals in relation to their eligibility for competition. A letter dated 22 February 2001 advises an employee that because of a serious offence recorded against him during 1998 and also because of his sick leave, his application for a particular post cannot be entertained. A letter dated 10 December 2002 from a Human Resources Manager to a Superintendent advises that an employee's application for an Acting List cannot be accepted because of his unsatisfactory conduct record and that his application must be rejected. A further letter dated 21 August 2003 advises an employee that she is ineligible to progress based on her unsatisfactory performance of duty which resulted in a serious offence being issued to her on 4 June 2002. The letter then states that "This warning remains in force for four years from its date of issue." It appears therefore that the respondent operates a custom and practice procedure of not allowing employees access to competitions if a serious offence is recorded against them although such a penalty is not stated in its grievance and disciplinary policy. In the interest of fairness to all its employees, I consider that the respondent should clarify the matter, if necessary by amending its grievance and disciplinary policy. In relation to access to the competition for full-time transport co-ordinator in 2002, I find that the complainant has failed to establish a prima facie case of discrimination. Furthermore, I accept the respondent's contention in its submission dated 22 January 2004 that in accordance with its custom and practice, the serious offence recorded against the complainant prohibited him from competition for the post.
Time limit for referring a claim
5.16 Section 77(5) of the Act provides that a claim for redress in respect of discrimination may not be referred after the end of the period of 6 months from the date of the occurrence or the most recent occurrence of the act of discrimination. In exceptional circumstances, the six month period may be extended. The complainant submits that in July 2001, he was offered severance terms when other people were not. As the complaint in relation to this matter was not referred within the statutory time limit, I have no jurisdiction to investigate it. The complainant also refers to competitions in 1996 and 1997 when he was unsuccessful. As these competitions were held before the Employment Equality Act, 1998 came into operation, a complaint of discrimination on the disability ground in relation to the claims cannot be investigated.
Reasonable accommodation
5.17 The complainant also submits that the respondent did not consider any method of reasonable accommodation which it ought to have done by reviewing his medical file after the entry into operation of the 1998 Act. He also submits that it was its obligation under section 16(3) to assess how the complainant could have been employed more fully when he applied for posts. Section 16 of the Employment Equality Act, 1998 does indeed impose an obligation on an employer to do all that is reasonable to accommodate the needs of an employee with a disability subject to the nominal cost requirement with effect from the date of operation of the Act (18 October 1999). However, I do not consider that the Act imposes an obligation on an employer to review its conduct prior to the operative date of the Act in respect of employees with disabilities. I must also point out that I consider that a question arises in relation to whether the respondent did all that was reasonable to accommodate the needs of the complainant in this case in relation to his conditions of work. However, the issue referred for investigation in this case is whether the respondent discriminated against the complainant in relation to the competitions in October 2001 and in June 2002.
Remedy
5.18 The respondent submits that in accordance with the standard custom and practice within the respondent organisation following the recording of a serious offence, the complainant was not eligible to compete in the competition in October 2001 and that due to an oversight, the complainant was interviewed but was unsuccessful in the competition. It further submits that had the complainant been successful and placed on the panel, the offence recorded against him would have prevented him from being appointed. As stated above at paragraph 5.12, the complainant's disability clearly affected the marking he received in relation to the performance assessment report which impacted on the overall marks achieved by him in the selection process and subsequently affected his ranking on the panel. However, I accept that the complainant would not have been appointed to a post as he was prohibited from competition due to the respondent's custom and practice. Nevertheless, he mistakenly was allowed to compete and suffered discrimination in the selection process and I therefore consider that a monetary sum for the effects of the act of discrimination is merited.
6. DECISION
6.1 On the basis of the foregoing, I find that the complainant was discriminated against on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 contrary to the provisions of section 8 of the Act in the selection process for appointment to the post of full time permanent postal sorter.
6.2 I find that the complainant has failed to establish a prima facie case of discrimination in relation to the post of full time transport co-ordinator and his claim in relation to that competition therefore fails.
6.3 In accordance with section 82 of the Employment Equality Act, 1998, I hereby order that the respondent:
(i) pay the complainant the sum of €4000.00 compensation for the effects of the act of discrimination. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination in the selection process for the post of full time permanent postal sorter and does not include any element relating to remuneration;
(ii) arrange training seminars for all staff (within six months) to brief them on the provisions of the Employment Equality Act, 1998.
_________________
Mary Rogerson
Equality Officer
5 March 2004
1DEE011 15 February 2001
2Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003