DEC-E2005-034 Full Case Report

AN EMPLOYEE (REPRESENTED BY A PUBLIC SERVICE UNION) AND A GOVERNMENT DEPARTMENT (REPRESENTED TOM MALLON B.L. INSTRUCTED BY CHIEF STATE SOLICITOR’S OFFICE)

1. DISPUTE
   1. This dispute involves a claim by Mr. A that he was discriminated against by the respondent on grounds of disability, within the meaning of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act when it failed to select him for promotion on the basis of seniority/suitability in February, 2003.
      
2. BACKGROUND
   1. The complainant has served in his grade since 1979 and is the longest serving member of staff at that grade in the Department. In January, 2003 he applied for promotion under the consistory (or direct) method of promotion – which is one of two selection mechanisms operated by the respondent for internal promotion at that grade. He was informed by the respondent on 7 February, 2003 that he was not being recommended for promotion following the consistory. The complainant is an alcoholic. He received treatment for his condition in 1995 and has been in recovery since. He contends that members of the consistory were aware of his condition, that they allowed this knowledge to influence their decision at the consistory meeting and that its failure to place him on the panel for promotion constitutes discrimination of him on grounds of disability contrary to the Act. The respondent rejects the allegations.
   2. The complainant referred a complaint to the Equality Tribunal on 6 March, 2003. In accordance with her powers under the Act the Director delegated the complaint to Vivian Jackson, Equality Officer on 16 September, 2003 for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 29 June, 2004. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. This process concluded on 2 March, 2005.
      
3. SUMMARY OF COMPLAINANT’S CASE
   1. The complainant has served in his grade since 1979 and is the longest serving member of staff at that grade in the Department. In January, 2003 he applied for promotion under the direct promotion (consistory) method of selection operated by the respondent in response to an Office Notice issued by the Department. He was informed on 7 February, 2003 that he was not being recommended for promotion at this time. The complainant states that an assessment of his performance completed by his immediate Line Manager and Head of Unit in respect of the consistory in 2003 indicated that he “exceeded the requirements of the job” in respect of his current post, that his Head of Unit “would be very satisfied if he were assigned to him on promotion” and he received 84 out of a possible 100 marks across 10 Predetermined Competencies. Consequently he argues that he was rated as satisfactory for promotion.
   2. The complainant states that he is an alcoholic. He underwent treatment for his condition in 1995 and has been in recovery since then. He adds that his condition would have been well known to the Management and staff of the Department and contends that this knowledge influenced the decision of those present at the consistory meeting. He further contends that alcoholism is a disability for the purposes of the Act – in this regards he cites the decision of the Equality Officer in A Complainant –v- Café Kylemore¹- and that consequently the decision of the consistory meeting not to recommend him for promotion constitutes discrimination of him on grounds of disability, contrary to the Act.
   3. The complainant states that the data furnished to him by the respondent in respect of the candidates selected as suitable for promotion following the 2003 consistory indicate the following:
      1. Eight of the candidates placed on the panel secured less marks that the complainant;
      2. Of the 24 candidates who were placed on the panel, one received an overall ranking of C, which is lower that the rank awarded to the complainant and fourteen others received an overall ranking of B – the same rank as awarded to the complainant;
      3. The complainant had 23 years’ service in his grade. Of those placed on the panel only Candidate A had a similar period of service (21 years). The remaining 23 candidates had periods of service between 3 and 9 years.
      The complainant submits these facts demonstrate that factors other than service and overall ranking were used to determine who should be placed on the panel and argues that they are of sufficient significance, when combined with the fact of his alcoholism, to raise a presumption of discrimination.
      
4. SUMMARY OF RESPONDENT’S CASE
   1. The respondent rejects the allegations that it discriminated against the complainant in any way. Notwithstanding that argument it submits that as the complainant is no longer dependent on alcohol and/or adversely affected by alcohol – that he is a recovering alcoholic- he can no longer be regarded as having a disability for the purposes of the Act. It contends that the fact the complainant may have had a disability in the past is insufficient to ground his current claim.
   2. The respondent states that the consistory comprises the Senior Management of the Department as well as the Heads of Units and equivalent grades. The Head of Unit gives his/her views of a candidate’s performance and potential for promotion to those in attendance, following which the merits of the candidate are discussed. It adds that whilst assessments of candidates are taken into account in reaching an overall view on suitability, due to the inevitable inconsistencies that arise in evaluation of candidates by the respective Line Managers and the varying degrees of difficulty in posts occupied by staff at the same grade as the complainant across the Department, the candidate’s assessment cannot be regarded as the sole criteria for promotion. The respondent further states that a high standard of performance in an existing grade does not generally mean that an employee would be considered suitable for promotion.
   3. The consistory process seeks consensus of those in attendance for a candidate, if consensus is not possible then the support of at least 60% of those in attendance is required. The complainant did not achieve this level of support and was not selected as suitable for promotion. In the course of the hearing evidence was given by a number of the respondent’s staff who were present at the consistory to the effect that his alcoholism was never mentioned during the discussions. The respondent adds that three other candidates were considered unsuitable by the consistory at the same time as the complainant and that three of these had the same overall ranking him. It submits that the foregoing demonstrates the complainant was merely considered unsuitable for promotion and that his failure to secure selection was unconnected with his condition.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issues for decision by me are (i) whether or not the complainant’s alcoholism/recovering alcoholism constitutes a disability for the purposes of section 6(2) of the Employment Equality Act, 1998 and (ii) whether or not the respondent discriminated against the complainant on grounds of disability within the meaning of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act when it failed to select him for promotion on the basis of seniority/suitability in February, 2003. In reaching my decision on these matters I have taken into account all submission, oral and written, made to me by the parties.
   2. Section 2 of the Employment Equality Act, 1998, inter alia, defines disability as:
      
      ( a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,……
      
      
      ( e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
      
      and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”
      
      In A Complainant v Café Kylemore²the Equality Officer held that alcoholism was a disability for the purposes of the Equal Status Act, 2000 and set out her rationale for reaching that conclusion. The definition of disability included in that Act and the Employment Equality Act, 1998 is the same. I agree with the Equality Officer’s conclusion in that case i.e. alcoholism is a disability for the purposes of the Equal Status Act, 2000 and find that it is also a disability for the purposes of the Employment Equality, Act, 1998.
   3. In the interests of completeness I must address an additional argument made by the respondent on this issue i.e. that as the complainant is no longer dependent on alcohol and/or adversely affected by alcohol – he is a recovering alcoholic and as such he can no longer be regarded as having a disability for the purposes of the Act. The National Institute on Alcohol Abuse and Alcoholism (Maryland USA) publication “Alcoholism – Getting the Facts” states “Although alcoholism can be treated, a cure is not yet available. In other words, even if an alcoholic has been sober for a long time and has regained health, he or she remains susceptible to relapse and must continue to avoid all alcoholic beverages. Cutting down on drinking doesn’t work; cutting out alcohol is necessary for a successful recovery.”. In my view this demonstrates that an alcoholic never really ceases to suffer from his/her condition, s/he merely controls it and unless that control is applied on a continuous basis s/he runs the risk of relapsing into the full rigours of alcoholism. I cannot therefore accept the respondent’s argument that the complainant is no longer suffering from a disability. Notwithstanding this view I would point out that the definition of disability contained in the Act covers circumstances where the disability “previously existed but no longer exists” and even if I were to accept the respondent’s proposition the complainant would, in my view, still be covered by the Act.
   4. I shall now deal with the substantive allegation of discrimination. It is well established caselaw of this Tribunal and the Labour Court that in all cases of alleged discrimination the complainant must, in the first instance, establish facts from which it can be inferred that s/he suffered discriminatory treatment. It is only when the complainant has established these facts to the satisfaction of the Equality Officer and s/he regards them as being of sufficient significance to raise a presumption of discrimination that the burden shifts to the respondent to rebut the inference of discrimination raised.
   5. The complainant sought promotion through the consistory process in both 2000 and 2001 He was assessed by his Line Managers on each occasion and whilst he was considered suitable for promotion he was awarded an overall ranking of “D” each time and was unsuccessful on both occasions. Notes furnished by the respondent in respect of these consistory meetings indicate that whilst he was “working well” in his present grade there were doubts over his ability to perform at the promoted grade and although he was not recommended for inclusion on the panel “if steady improvement- keep open mind” for the future. The complainant was considered suitable for promotion again in 2002 and was awarded an overall ranking of “B” by his Line Managers. In my view this represents considerable improvement on previous assessments. The consistory met on 20 November, 2002 to discuss the formation of a promotion panel on foot of applications received as a result of Office Notice 8/02. Notes furnished by the respondent in respect of this consistory meeting indicate that there was significant debate about the complainant during the course of the meeting and he was again considered unsuitable for promotion. This decision was re-affirmed at the consistory meeting on 24 January, 2003.
   6. The respondent states that candidates at consistory will be considered for promotion to the higher grade on the basis of suitability with due regard to seniority, that due to the inevitable inconsistencies that arise in evaluation of candidates by the respective Line Managers and the varying degrees of difficulty in posts occupied by staff at the same grade as the complainant across the Department, the candidate’s assessment cannot be regarded as the sole criteria for promotion and that a high standard of performance in an existing grade does not generally mean that an employee would be considered suitable for promotion. It adds that the consistory meeting reaches a decision on a candidate’s suitability for promotion following a report from his/her Head of Unit on the candidate’s “performance and potential” for promotion. It appears to me that the selection process therefore falls into two distinct parts – the first involves an objective evaluation of the candidate by his/her Line Manager across ten pre-determined criteria and a recommendation on the candidate’s suitability for promotion and the second element involves a subjective discussion of the candidate by a number of people, many of whom may not know, or have first hand knowledge of the candidate, who reach a final decision on his/her suitability for promotion. Such a process is far from ideal and can foster a climate where discrimination can arise.
   7. I note the respondent’s comments that “there have been no difficulties with the complainant’s work performance arising from his former alcohol addition since he commenced his treatment in 1995”. Such comment is consistent with the complainant’s assessment by his Line Managers during that time. It is also consistent with the comments attributed to his Head of Unit and Line Manager at the consistory meeting of 20 November, 2002. The only potentially negative comments recorded at that meeting are attributed to two senior officials of the Department who had direct knowledge of the complainant’s alcoholism. Whilst I accept the respondent’s evidence that the complainant’s condition was not mentioned at the meeting, it appears odd to me that senior officials were not aware of the complainant’s condition given that he was over 23 years in the Department and if they were, that this knowledge did not subconsciously influenced their decision. I note in particular that despite the complainant’s significant improvement over previous assessments, an area identified as fatal to his previous applications for promotion, the consistory meeting did not consider it necessary to vote on his candidacy in November, 2002, rather there was unanimous rejection of his application. I also note the fact that fifteen of the candidates placed on the Promotion Panel received a ranking either equivalent or inferior to the complainant, whilst at the same time having less than half of his period of service.
   8. Taking the evidence submitted by the parties as a whole I find, on balance, that the complainant has established a prima facie case of discrimination and the respondent has failed to rebut that inference, primarily because of the lack of records in relation to how the candidates are assessed at consistory and how the decisions made at the consistory meeting are arrived at. This lack of records was identified by the Labour Court as “an insuperable difficulty” for the respondent when attempting to prove the consistory process was not discriminatory in The Department of Health and Children -v- Gillen³. I find therefore that the respondent discriminated against the complainant on grounds of disability contrary to the Act when it failed to select him for promotion on the basis of seniority/suitability in February, 2003.
      
6. DECISION
   1. I find that the respondent discriminated against the complainant on grounds of disability contrary to the Act when it failed to select him for promotion on the basis of seniority/suitability in January/February, 2002.
   2. In assessing the level of redress in this case I am satisfied that it is appropriate to place the complainant in the position he would have enjoyed had discrimination not occurred. I am satisfied that the complainant would have been placed first on the panel for promotion following the consistory in January, 2003 – it was accepted by both parties to the complaint that once the consistory deems a candidate suitable for promotion s/he is placed on the promotion panel in order of seniority at his/her current grade and the complainant was the longest serving officer in the Department at his grade. I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004:
      1. that the complainant is appointed to the relevant grade with immediate effect and that this appointment is backdated to the date of the first appointment made from the panel established following the consistory meetings on 20 November, 2002 and 24 January, 2003;
      2. that he is paid the full necessary adjustment in salary and any other benefits that applied to the post during the period at (i) above;
      3. that the respondent pay the complainant €6,000 by way of compensation for the distress suffered by him as a result of the discrimination;
      4. whilst acknowledging that the consistory method of promotion is accepted by the complainant’s trades union as a suitable mechanism for promotion, the respondent should take immediate steps to ensure that the process is conducted in an open and transparent fashion and that the reasons by which it arrives at its decisions can be clearly identified. In particular adequate records must be retained in order to demonstrate that the process is objective and free from bias on any of the grounds covered by the Act.

Vivian Jackson ,
Equality Officer,
20th July, 2005

¹DEC-S/2004/24

²DEC-S/2004/24

³ADE/03/15