Gorry (Represented by Conor Power BL, on the instructions of the Equality Authority) AND Office of the Civil Service and Local Appointments Commissioners (Represented by Anthony Kerr BL, instructed by the Chief State Solicitor)
1. DISPUTE
1.1 This dispute concerns a claim by Mr Paul Gorry that he was discriminated against by the Office of the Civil Service and Local Appointments Commissioners on the ground of disability, contrary to the provisions of the Employment Equality Act 1998, when he was refused an appointment to the grade of Executive Officer because he had failed his Leaving Certificate examination in English in 1990. Mr Gorry was diagnosed with a specific learning disability akin to dyslexia (hereafter called dyslexia) in 1992.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 15 March 2001 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 5 April 2001 to Anne-Marie Lynch, 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. Submissions were sought from both parties and a joint hearing was held on 26 June 2004. Subsequent correspondence with the parties concluded on 11 August 2004
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 As the complainant had not been diagnosed with any specific learning disability at the time he sat his Leaving Certificate in 1990, he was given no additional time, assistance or support. As a result, he failed his English examination. Following his diagnosis with dyslexia in 1992, the complainant requested the Department of Education to review his examination scripts. He was informed that all examination scripts for the relevant year had been destroyed and reassessment was not possible.
2.2 In December 1999, the complainant applied for the posts of Administrative Officer/Third Secretary/Executive Officer and equivalent grades in an open competition run by the respondent. Following Stage I (a written examination) he was advised that he had not reached the qualifying standard to continue in the competition for posts as Administrative Officer, Higher Tax Officer or Executive Officer. In the competition for Executive Officer - NRB he was placed 36 on the order of merit, and was therefore eligible to proceed to Stage II and an interview.
2.3 By letter of 10 August 2000, the complainant was informed that he had been placed on a panel for consideration for various posts at Executive Officer level, should they arise. He was also informed that his consideration for any such post would be subject to the respondent being satisfied as to his qualification for appointment with regard to age, health and character and also that he "satisfy the eligibility criteria with regard to qualifications laid down for the position of Executive Officer".
2.4 By letter of 18 October 2000, the complainant was informed that his qualifications did not qualify under Paragraph 4 (1) (a) of the Regulations Part I governing the competition. The letter said further that the Civil Service Commissioners were empowered by the Civil Service Commissioners Act 1956 to make Regulations in respect of competitions held by them. The Regulations, which covered the eligibility criteria of such competitions, were made under statute and were legally binding. The relevant extract from the Regulations is attached at Appendix I of this decision. The complainant unsuccessfully appealed this decision.
2.5 In February 2001, the complainant applied for another open competition. On this occasion, his order of merit indicated that he could proceed further with the Administrative Officer competition. As he did not wish to undergo the interview process again, only to be unsuccessful because of his Leaving Certificate English results, the complainant brought the situation to the attention of the respondent. He was advised that he could not proceed with his application because of his ineligibility. The complainant also asserted that the respondent failed to provide him with reasonable accommodation for the second examination in 2001. However, this issue was not brought to the attention of the Tribunal until August 2002, and was therefore referred outside the six-month time period specified in section 77 of the 1998 Act. It was clarified at the hearing of the complaint that the issue would not form part of the investigation.
2.6 The complainant said that he was fully competent and available to undertake, and fully capable of undertaking, the duties attached to the position of Executive Officer (EO), having regard to the conditions under which those duties are or may be required to be performed. The complainant submitted an EO Job Analysis Summary Report, commissioned by the respondent in 1996-1997. He said he was fully competent and capable of undertaking the core competencies identified for the job, subject to the provision of minimum reasonable accommodation in relation to the presentation of written material (the relevant extract of the Report is attached at Appendix II).
2.7 The complainant said that section 17 of the 1998 Act provided that actions done in compliance with a number of sections of legislation were not rendered unlawful by the 1998 Act. He said it was significant that the Regulations which define the eligibility criteria for the position of EO were not included in that section or elsewhere within the Act. He asserted that the provisions of the 1998 Act therefore took precedence over these Regulations.
2.8 The complainant pointed out that the respondent, in a letter to his representative dated 24 May 2001, said "In initiating a competitive selection process, it is common practice to use some formal benchmark of academic achievement to attract prima facie suitable candidates to apply". The complainant said it was clear from this that the respondent was applying a generalised benchmark of academic achievement rather than maintaining that the possession of a Leaving Certificate was a prerequisite to carry out the post of EO. He said this was corroborated by the EO Job Analysis which stated "At one time Executive Officer recruitment was aimed primarily at school leavers but changing educational patterns have altered this position".
2.9 The complainant said that a generalised benchmark of academic achievement could not demonstrate whether or not he could do the job required. He said that he had had no opportunity to demonstrate that, despite not having Leaving Certificate English, his disability did not mean he could not carry out the requirements of the position.
2.10 The complainant submitted that to insist that he obtain a pass in Leaving Certificate English, given his dyslexia, was indirect discrimination contrary to section 31 of the 1998 Act, given that it was a requirement for all employees. This operated to the disadvantage of the complainant compared to someone without dyslexia, and in practice could be complied with by a substantially smaller proportion of employees who may have dyslexia or a related condition. He said this was particularly so where there was no diagnosis at the time of the examination, as in his case.
2.11 The complainant said he was capable of all of the duties of an EO and was currently working as a Tax Officer which he said was akin to an EO post. He said the respondent had previously advertised EO positions without the Leaving Certificate English requirement. He pointed out that he had been successful in two separate competitions, and said that the requirement was not justified as being reasonable in all the circumstances.
2.12 The complainant referred to section 8 (5) of the 1998 Act, which states
Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee-
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered...
He said that the requirement of an arbitrary academic criterion was such an arrangement. By having this arrangement in place, the complainant said he was deprived of any possibility of non-discriminatory consideration.
2.13 The complainant also referred to section 16 (3) (b) which states
For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such a person would be fully competent to undertake, and be fully capable of undertaking, those duties.
The complainant said this section was also relevant in that he was fully capable of carrying out the duties of an EO with adequate aids.
2.14 In further support of his arguments, the complainant made reference to previous caselaw. He cited the Equality Officer decision in Kehoe v Convertec (DEC-E2001-034), where the respondent was found not to have done all that was reasonable to accommodate the needs of a person with a disability, and he submitted that it was not reasonable to insist on a pass in Leaving Certificate English particularly when it was apparent that the employee was capable of doing the job and had been assessed as capable in both a written examination and an interview specifically designed for the post.
2.15 The complainant also cited a Canadian decision, Canada (Attorney General) v Green (TD) ([2000]4FC 629). In that case, the Federal Court upheld a Canadian Human Rights Tribunal finding that otherwise non-discriminatory tests had adverse consequences for those with dyslexia, and that the tests administered focused on the person's weakness and not on his or her ability to do the job. The complainant argued that this was similar to his situation in that the seemingly non-discriminatory practice of insisting on a Leaving Certificate pass in English focused on his weak points.
2.16 The complainant also referred to the European Court of Justice decision in Bilka-Kaufhaus GmbH v Karin Weber von Hartz (Case 170/84) which he described as the leading EU decision on indirect discrimination. He said that that decision laid down the following test: firstly, the objective the measure is designed to achieve must be appropriate; secondly, there must be no other way of achieving the objective with a lower adverse impact; thirdly, the means chosen must in fact achieve the stated objective. The complainant submitted that the objective to be achieved by the respondent was finding the most suitable candidates for EO/AO posts. He argued that there were more suitable methods than insisting on a pass in English in the Leaving Certificate, and suggested that this was conceded by the respondent as it also used written examinations and interviews to assess suitability.
2.17 At the hearing of the claim, the complainant indicated that his complaint related to the general Leaving Certificate requirement, as opposed to the requirement to have a pass in Leaving Certificate English. He said this was implicit in his pre-hearing submissions. The parties were invited to provide further written submissions on the issue.
2.18 The complainant provided details of his difficulties with the Leaving Certificate in 1990, in a situation where his dyslexia was undiagnosed and appropriate supports were not in place. He submitted that the respondent's failure to consider his educational history, the explanation for his below par performance and his subsequent educational success amounted to direct and/or indirect discrimination. He further submitted that the requirements in relation to the Leaving Certificate examination could not be justified as being reasonable in all the circumstances of the case.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent reiterated its argument that it is common practice, in initiating a competitive selection process, to use some formal benchmark of academic achievement to attract prima facie suitable candidates to apply. It said the selection of people in this manner was widespread in recruitment in Ireland and abroad, and said it was one of the reasons why school examination results were so important. It argued that it was essential for the effectiveness of large-scale competitions, such as that for EO in January 2000, to focus on those people most likely to be suitable and who have demonstrated an overall intellectual attainment.
3.2 The respondent said that the complainant was ineligible for the competition as he did not satisfy the eligibility requirements as specified in the Regulations. These Regulations were binding, as a result of section 16 of the Civil Service Commissioners Act 1956, and to divert from them in the complainant's case would be unfair to all potential candidates who did not apply because they did not meet the minimum eligibility requirements specified.
3.3 The respondent said that the complainant was adjudged ineligible not merely because he had not obtained a pass in Leaving Certificate English (or Irish) but also because his third level qualification did not satisfy the Regulations. It said the complainant argued that the criterion of Leaving Certificate English was not a necessary prerequisite for the performance of the duties of an EO. The respondent did not accept this, but said, even were this so, the complainant still failed to meet the other eligibility requirements specified in the Regulations.
3.4 The respondent claimed it was incorrect of the complainant to seek to segment the Regulations and single out the Leaving Certificate English (or Irish) requirement. It said that the Regulations required candidates to have obtained a pass or a minimum of grade D in Mathematics and Irish or English in the Leaving Certificate (emphasis in the original). The respondent argued that the rationale for specifying Mathematics and English or Irish as essential subjects was that EOs needed to be capable of, inter alia, presenting written material in a clear, concise, comprehensive and convincing manner (see Appendix II). The respondent said written communication was an integral feature of an EO's role, and those officers required both a linguistic and mathematical capability.
3.5 The respondent referred to section 36 of the 1998 Act, which states
(4) Nothing in this Part or Part II shall make it unlawful to require, in relation to a particular post-
(a) the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, ...
(5) Nothing in this Part or Part II shall make it unlawful for a body controlling the entry to, or carrying on of any profession, vocation or occupation to require a person carrying out or wishing to enter that profession, vocation or occupation to hold a specified educational, technical or other qualification which is appropriate to the circumstances.
3.6 Regarding the complainant's assertion that his post as Tax Officer was equivalent to EO, the respondent did not accept this. It said that the Tax Officer grade was a departmental grade and was equivalent to Clerical Officer. Tax Officers were recruited from the same competition as Clerical Officers and undertook the same aptitude tests. The respondent acknowledged that Tax Officers were paid slightly more than Clerical Officers, but said this was because there was an approximate 3% salary differential between all tax grades and their equivalent general service grades. The promotional grade from Tax Officer was Higher Tax Officer, which the respondent said was equivalent to EO and which was recruited from EO competitions.
3.7 The respondent denied the complainant's claim that it had previously advertised EO posts without a Leaving Certificate requirement, saying that that particular recruitment campaign had been carried out by the Department of Justice, Equality and Law Reform. These were urgent temporary appointments in specified work areas and did not come within the terms of the 1956 Act. The respondent said it had been advised by the Department that the entry requirements reflected the specialised nature of the positions. The selection process comprised a short-listing exercise, where a limited number of candidates were invited to interview based on specific relevant experience in addition to the entry requirements. All appointments were made on a one-year contract basis and there was no provision for the appointees to transfer into other EO positions within the Department or the Civil Service generally.
3.8 The respondent objected to the complainant arguing that the Leaving Certificate requirement generally was discriminatory, saying this was a new claim and was referred outside the six-month time limit provided for in the Act. It submitted that the matter should be disposed of as originally referred and the general question of the Leaving Certificate requirement should be left for consideration in another more appropriate case.
3.9 Without prejudice to this argument, the respondent submitted that the impugned requirement was not discriminatory. It said that the position of EO requires a certain standard of numerical and verbal competence for effective performance. It said this level of competence had been pitched at Leaving Certificate standard and had been the benchmark for entry to the EO grade for many years. It said it had always made provision for applicants who had achieved equivalent educational standards (such as A Levels or the Baccalaureate) provided they can be independently verified. The respondent re-asserted its claim that to require EO candidates to have achieved certain results in the Leaving Certificate was expressly permitted by section 36 of the 1998 Act.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties. For the sake of completeness, I wish to acknowledge that the complainant submitted numerous documents relating to the general and personal effects of dyslexia on learning achievements, not specifically referred to in the summary above because of length.
4.2 The complainant alleged that the respondent discriminated against him on the ground of disability contrary to the provisions of the Employment Equality Act 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include disability.
4.3 The facts in this claim are not in dispute. The complainant was not permitted to participate further in two competitions conducted by the respondent because of his Leaving Certificate results. The complainant asserts that his Leaving Certificate results were consequent on his disability, which was undiagnosed at the time that he sat the examination, and that the Leaving Certificate requirement imposed by the respondent was therefore discriminatory on the disability ground. The respondent argues that it was constrained by the Regulations introduced under the 1956 Act, and points to the provisions of section 36 of the 1998 Act, which provides that the imposition of certain requirements shall be lawful.
4.4 The complainant said that he was working as a Tax Official, which grade he asserted was akin to that of EO. I note from an attachment to his submission that a Revenue Commissioners publication describes the competition for entry to the grade as "a common Tax Officer/Clerical Officer aptitude test". I am satisfied therefore that the respondent's description of his grade was correct. I note also that the comment in the EO Job Analysis referred to at 2.8 above was actually dealing with the increasing numbers of EO candidates who are graduates, and is not indicative of the status of the Leaving Certificate. I am also satisfied that the EO competitions that did not specify a Leaving Certificate requirement were not carried out by the respondent, and did not carry any entitlement for the successful candidates to enter the Civil Service.
4.5 I cannot fully accept the respondent's argument regarding the Regulations made under the 1956 Act. Section 16 of that Act provides that the respondent may make various regulations with the consent of the Minister. While I accept that altering the regulations after they had been published may have operated to the detriment of other potential candidates, it was open to the respondent to seek the consent of the Minister to amend the Regulations in relation to the second EO competition, prior to their publication. This it did not do.
4.6 Although the complainant's post-hearing submission claimed direct and/or indirect discrimination, it appears to me that the claim is correctly one of indirect discrimination, in terms of section 31 (1) of the 1998 Act. This provides that
Where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment-
(a) applies to all the employees or prospective employees of a particular employer who include C and D...,
(b) operates to the disadvantage of C, as compared with D...,
(c) in practice can be complied with by a substantially smaller proportion of the employees or prospective employees having the same relevant characteristic as C when compared with the employees or prospective employees having the same relevant characteristic as D, and
(d) cannot be justified as being reasonable on all the circumstances of the case.
4.7 It seems quite clear that the Leaving Certificate requirement imposed by the respondent can, in practice, be complied with by a substantially smaller proportion of persons with dyslexia than persons without dyslexia, in circumstances where necessary supports were not available when sitting the examination. As such, it may be indirectly discriminatory unless it can be demonstrated to be reasonably justifiable. In considering this matter, I have had regard to the provisions of section 36 of the 1998 Act, referred to by the respondent and quoted at 3.5 above.
4.8 The section makes it quite clear that access to any particular post may be restricted to persons holding a specified qualification, which is generally accepted in the State for such posts, and entry into any occupation may be confined to those holding a specified qualification, which is appropriate in the circumstances. The Leaving Certificate examination is "the terminal examination of post-primary education...[and] is the main basis upon which places in [third level education] are allocated." It is estimated that over 80% of pupils (more than 53,000 in 2003) complete second level education by sitting the Leaving Certificate examination. Of these, some 60% progress to third level education. Consequently, for over 21,000 young people in any given year, the Leaving Certificate examination is the conclusion of their formal education and therefore their highest qualification when seeking employment. (Source: A Brief Description of the Irish Education System, Department of Education and Science, January 2004).
4.9 In the circumstances, I cannot find the Leaving Certificate examination to be anything other than generally accepted in the State for posts such as the EO post, nor can I find it other than appropriate in the circumstances. The respondent's requirement that a candidate have attained this level of education is therefore not discriminatory. In the light of this conclusion, I do not consider it necessary to make a formal finding on whether the Leaving Certificate requirement generally, as opposed to the requirement to have passed English in the Leaving Certificate, was referred outside the six-month time limit.
5. DECISION
5.1 Based on the foregoing, I find that the Office of the Civil Service and Local Appointments Commissioners did not discriminate against Mr Gorry on the ground of disability, contrary to the provisions of the Employment Equality Acts 1998 - 2004.
_____________________
Anne-Marie Lynch
Equality Officer
2 September 2005
Appendix I: Extract from the Regulations Part I governing the EO competition
4 (I) For all Competitions:
(a) Candidates must on or before 1 November, 1999 -
(i) have obtained a recognised degree or hold a qualification which would be acceptable to the Civil Service Commissioners as being of at least an equivalent standard; or
(ii) have obtained a pass or a minimum of Grade D in Mathematics and Irish or English in the Leaving Certificate Examination of the Department of Education and Science, having obtained at least an honour or Grade C in Higher, Common or Honours Level papers in at least five subjects in the examination, or have passed in an examination (or examinations) which would be acceptable to the Civil Service Commissioners as being of at least an equivalent standard; or
(iii) have obtained at least a Grade D in Mathematics and either Irish or English in the Leaving Certificate Examination of the Department of Education and Science or in an examination acceptable to the Civil Service Commissioners as being of at least equivalent standard;
and
have passed the first year examination of a course leading to a recognised degree; or
hold a certificate or other qualification obtained following a course of at least two years' duration recognised by the National Council for Educational Awards or by the Dublin Institute of Technology; or hold a certificate or other qualification acceptable to the Civil Service Commissioners as being of equivalent standard; or
have passed the Professional Examination I, or equivalent, of a recognised body of accountants; or
(iv) be serving as an established Civil Servant, and have at least two years' service on 1 November, 1999 (towards which unestablished service may be reckoned, if necessary) and have obtained a pass or minimum of Grade D in at least five subjects (including Mathematics and Irish or English) in the Leaving Certificate Examination of the Department of Education and Science, having obtained at least an honour or Grade C in at least three subjects in the examination, or have passed in an examination (or examinations) which would be acceptable to the Civil Service Commissioners as being of at least an equivalent standard;
and
(b) otherwise, possess the requisite knowledge and ability (including the ability to communicate effectively) and be suitable to enter on the discharge of the duties of the position.
Appendix II: Extract from EO Job Analysis Summary Report
EO GRADE CORE COMPETENCY FRAMEWORK
COMPETENCY TITLE SUMMARY STATEMENT OF COMPETENCY
Task Oriented
Research & Analysis Sources all relevant information and conducts an in-depth review, draws conclusions backed up with available evidence and makes appropriate recommendations.
Thoroughness & Accuracy Checks all tasks completed to reduce the scope for error. Is thorough in maintaining accurate numerical and verbal information and following appropriate procedures.
Planning & Organising Plans and organises people and other resources to meet goals, targets or objectives within agreed time scales. Monitors progress against objectives and reviews plans where necessary.
Interpersonal Skills
Interpersonal Effectiveness Shows understanding and sensitivity in dealings with others and adopts a persuasive approach with communicating. Builds rapport by listening and responding to the needs of others.
Teamworking Shares ideas and information with people, brought together from a variety of backgrounds, as a team, with the purpose of achieving a particular result. Brings own expertise to bear, through active contribution, to reach the team objective(s). Adopts a consultative approach to tasks by encouraging others to contribute.
Written Communication Presents written material in a clear, concise, comprehensive and convincing manner, to inform and influence the reader.
Personal Qualities
Commitment to Achieving Results Takes ownership of tasks and is determined to see them through to a satisfactory conclusion. Accepts full responsibility for achieving objectives and will take all necessary measures to achieve quality results.
Initiative Actively suggests improvements and adapts readily to change. Can work without excessive guidance and support, yet knows when the involvement of others is required. Develops own knowledge and potential through constant review and updating.