BOOTH (REPRESENTED BY DISABILITY LEGAL RESOURCE) v WEXFORD COUNTY COUNCIL (REPRESENTED BY LGMSB)
File No: EE/2004/24
Date of issue 9 December, 2005
1. DISPUTE
This dispute involves a claim by Mr. Michael Booth that he was discriminated against by Wexford County Council on grounds of disability, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act when it failed to appoint him to the position of Resident Artist following a selection process in June, 2003. The respondent rejects the complainant's assertions and contends, as a preliminary matter, that the claim is outside the scope of the Employment Equality Act, 1998 as the arrangement between the parties was not one which was covered by the definition of "contract of employment" as provided at section 2 of the Act.
2. BACKGROUND
2.1 The complainant responded to an advertisement by Wexford County Council for a post as resident artist under the "Arts Ability" project in June, 2003. He was unsuccessful and alleges that he was discriminated against on grounds of disability contrary to the Act. The respondent rejects this assertion and notwithstanding this, submits that the claim is outside the jurisdiction of the Employment Equality Act, 1998 because the arrangement between the parties was not one which was covered by the definition of "contract of employment" as provided at section 2 of the Act.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 28 January, 2004. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Written submissions were received from both parties. A preliminary hearing of the complaint took place on 6 April, 2005 to deal with the issue of jurisdiction. Additional information was requested of the parties and the Equality Officer wrote to them on 5 July, 2005 informing them that he considered the relationship between the respondent and the successful candidates to constitute a contract of service, that the complainant had the locus standi to maintain his complaint and that he would set out the reasons for his conclusion in this Decision. The hearing in relation to the substantive complaint of discrimination occurred on 17 October, 2005.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is an artist by profession. In June, 2003 he replied to an advertisement for positions as resident artist for the respondent's project "Arts Ability". He was initially informed that he was not selected for interview, but following a discussion with the respondent's Arts Officer, this decision was changed and he attended for interview on 17 July, 2003. The complainant was not selected for appointment following interview and contends that the marks awarded to him at interview across the three selection criteria do not reflect his ability, qualifications and experience as an artist and his commitment to deliver the project, given that he was disabled himself. The complainant contends that he was as suitable for the post as the four appointees and that he was discriminated against on grounds of his disability.
3.2 The complainant submits that any relationship between the successful candidates and the respondent is a contract of service and therefore the Equality Tribunal has jurisdiction to investigate his complaint. He argues that the fact the respondent labelled the arrangement as a contract for services when advertising the post is irrelevant and that it is the operation of the arrangement between the parties which determines its status. In addition he states the fact the successful candidates were not covered by the respondent's annual leave or sick pay schemes and that the appointees were able to seek employment with other organisations do not of themselves, mean the relationship was a contract for services. The complainant argues that the respondent exercised a significant degree of control over the appointees in that it determined the locations of the workshops, which appointees should be assigned to those locations, the rates of pay offered to the appointees and the hours available to individuals. Any variation to these arrangements required the approval of the respondent's Arts Officer. In addition, the respondent provided the necessary material for the workshop - the artist was not expected to furnish his/her own nor were they expected to bear any financial risk in respect of the project. The complainant submits that the Equality Officer must, in accordance with the judgement of the Supreme Court in the Denny case , look at the totality of the circumstances in order to determine whether or not the arrangement which existed between the respondent and the successful candidates constitutes a contract of employment for the purposes of the Employment Equality Act, 1998.
4. SUMMARY OF RESPONDENT'S CASE
4.1 In the first instance the respondent argues that the Equality Officer has no jurisdiction to investigate the complaint as the relationship between it and any successful candidate was not a contract of employment and such a relationship is required under the Employment Equality Act, 1998. Is states that the documentation forwarded to the applicants clearly indicated that the arrangement was a contract for services. The successful candidates were paid on an agreed fee basis, the payments were not subject to PAYE or PRSI deductions, the appointees were not covered by the respondent's annual leave, sick leave or pension arrangements and they were free to engage in other employment without recourse to the Council. It adds that appointees were contracted to provide workshops at a number of locations throughout the county on a consultancy basis. Once the workshop commenced the appointee was not supervised in any way and had total control of the content of the workshop and how it should be delivered to the participants. The respondent states that it acted as co-ordinator for the project and was never the appointees' employer. Consequently, it submits that the case falls outside the scope of the legislation and the Equality Officer has no jurisdiction in the matter.
4.2 The respondent rejects the assertion that it discriminated against Mr. Booth in respect of the selection process for the project. It states that it received forty-three applications on foot of its advertisement for "Arts Ability" a project which focussed on celebrating the artistic and creative imagination of people who experience mental health problems and/or disability. Consequently, it decided to conduct a screening process where applications were assessed across three pre-determined criteria - (i) Relevant Qualification in art form; (ii) Level of Experience and (iii) Commitment to the role of arts in a mental health/disability context which reduced the number to seventeen, all of whom were called for interview. Applicants were required to furnish a CV and Statement of Interest with their applications and these documents formed the basis of the screening process. The complainant did not furnish either a CV or a Statement of Interest with his application and was not selected for interview. The respondent states that the complainant subsequently telephoned the respondent's Arts Officer to discuss why he was not selected for interview. It adds that during the course of this conversation that Arts Officer concluded that the complainant had demonstrated a commitment to arts in disability and she decided to call him for interview although he did not essentially qualify for same.
4.3 The respondent states that in advance of the interviews the Arts Officer prepared a person specification for the post, an outline of areas of questioning for each candidate and the scoring process for each of the three competencies across which candidates were to be assessed. The other members of the Interview Panel (Ms. A) an Arts Officer from another Local Authority and (Mr. B) a retired Nursing Officer agreed with the foregoing when they met in advance of the interviews. The respondent further states that the complainant did not impress the Panel at interview and seemed to misunderstand what the post involved, focussing instead on the fact that he was an artist with a disability and therefore was suitable for appointment. In addition he failed to demonstrate that he possessed the necessary skills and experience to facilitate the workshop and work in a collaborative manner with the participants. The respondent states that the four candidates were selected for the positions on the basis of qualifications, experience and appropriate skills which were superior to those of the complainant and rejects the assertion that the complainant was treated less favourably on grounds of his disability.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for consideration by me is (i) whether or not the respondent engaged the successful candidates under a contract of employment following the selection process and therefore this Tribunal has jurisdiction to investigate the complainant's case and (ii) whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when it failed to appoint him to the position of resident artist following a selection process in June, 2003. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.
5.2 Section 2 of the Employment Equality Act, 1998 provides, inter alia,
"contract of employment" means .....
(a) a contract of service or apprenticeship, ......"
It follows therefore that the relationship between the respondent and the successful candidates must constitute a contract of service to enable the complainant pursue his claim. There is extensive caselaw in this jurisdiction on whether a particular relationship between two parties is to be regarded as a contract of service or a contract for services. Following the Supreme Court judgement in Henry Denny & Sons v Minister for Social Welfare there is a single composite test for determining this question. That test involves looking at the contract as a whole and asking is the person in business on his or her own account. If the answer to that question is yes, the contract is one for services. If the answer to that question is no, the contract is one of service. The issue of control, although a factor to be taken into account, is not decisive.
5.3 On the basis of the evidence presented during my investigation, I am satisfied that the respondent decided and provided the venues for the workshops and which of the appointees would be assigned to specific venues. It also determined the overall number of hours available to each appointee for the duration of the project and any amendment to this required the approval of the respondent's Arts Officer. Although an appointee could engage a colleague to deliver a workshop, this replacement would have to be approved by the respondent's Arts Office. Appointees were paid an agreed hourly rate and the only way to increase that income was to work additional hours - these would have to be approved by the Arts Officer. In contrast, payment could be withheld by the respondent where the agreed number of hours were not delivered by an appointee. All materials for the workshops were provided by the respondent and the cost of any additional items furnished by the appointee could be recouped from the Council - the appointees could not increase their income by charging any of the participants. Travelling expenses were paid by the respondent and the appointees were not exposed to any financial risk in respect of the project. Whilst the respondent may not have exercised its control in these areas during the course of the project as was pointed out by Walsh J in Roche v Kelly it is the right to control the work rather than the exercise of that right that matters.
5.4 The appointees were paid on foot of invoices submitted without deduction of PAYE or PRSI. Whilst the treatment of these matters is a factor to be taken into account, it is not decisive. In the Denny case the Demonstrators were paid on similar lines but were nonetheless held to be employees. An appointee could alter the arrangements at local level if for some reason s/he could not comply with the agreed arrangements for the workshop, so long as the approved number of hours and budget for that location was not exceeded. Whilst the appointees were free to work for other organisations during the course of the project, I am of the view that an employee can have a second or third job and this has no bearing on their employment status in any one of them. Such a view is endorsed by the judgement of Carroll J in In Re: Sunday Tribune where one of the regular columnists held to be an employee also worked for London Weekend Television and The New Statesman. Having regard to my comments in this and the preceding paragraph I find that the arrangement which existed between the appointees and the respondent in respect of the "Arts Ability" project constitutes a contract of service, which complies with the definition of contract of employment at section 2 of the Act. Consequently, this Tribunal has jurisdiction to investigate the complainant's case.
5.5 I shall now examine the substantive allegation of discrimination on grounds of disability. It is the established practice of this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination similar to that applied in gender based claims and I intend to follow that approach in the instant case. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on grounds of disability. It is only when the complainant has discharged that obligation to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the inference raised.
5.6 The complainant was not shortlisted for interview initially, primarily because his application form did not contain sufficient information to enable the assessors to do so, one of whom was the respondent's Arts Officer. When the complainant subsequently spoke with this person she decided to call him for interview, despite the previous decision. I cannot accept that this constitutes evidence of less favourable treatment of the complainant. The complainant asserts that scores awarded to him at interview across the three evaluation criteria do not reflect his ability, qualifications and experience as an artist and his commitment to deliver the project. I have examined the CV's of the successful candidates and I am satisfied that their qualifications are superior to those of the complainant. I note the respondent's comments that the complainant did not impress the Panel at interview, that he seemed to misunderstand what the post involved, focussing instead on the fact that he was an artist with a disability and therefore was suitable for appointment and that he failed to demonstrate that he possessed the necessary skills and experience to facilitate the workshop and work in a collaborative manner with the participants. The respondent furnished the Equality Officer with notes of the interview and they support such an opinion. I have also examined the CV's and application documentation of the four successful candidates, along with the notes in respect of their interviews and I am satisfied that they are consistent with each other. In addition, the complainant acknowledged at the hearing that he was not asked any question at interview which he considered to be discriminatory and confirmed that the questions asked of him were consistent with the areas furnished in the respondent's submission. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination and his claim must fail.
6. DECISION OF EQUALITY OFFICER
I find that -
(i) the arrangement which existed between the appointees and the respondent in respect of the "Arts Ability" project constitutes a contract of service, which complies with the definition of contract of employment at section 2 of the Act. Consequently, this Tribunal has jurisdiction to investigate the complainant's case;
(ii) the complainant has failed to establish a prima facie case of discrimination in respect of the selection process conducted by the respondent in June, 2003 and his claim must fail.
Vivian Jackson
Equality Officer
9 December, 2005