FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A GOVERNMENT DEPARTMENT (REPRESENTED BY MS CATHY SMITH B.L., INSTRUCTED BY THE CHIEF STATE SOLICITOR) - AND - AN EMPLOYEE (MS B) (REPRESENTED BY CIVIL & PUBLIC SERVICES UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998, Dec-E2005-032.
BACKGROUND:
2. A Labour Court hearing took place on the 20th January, 2006, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
This is an appeal by a Government Department against a decision of the Equality Tribunal which found that it had discriminated against Ms B on the disability ground in contravention of Section 8 of the Employment Equality Act 1998 (the Act), in not appointing her to the post of Staff Officer. For ease of reference in this determination the parties are referred to using the designations prescribed by Section 74(4) of the Act. Hence Ms B is referred to as the Complainant and the Government Department is referred to as the Respondent.
Background.
The Complainant is employed as a Clerical Officer in the Civil Service. She suffers from a serious eye condition which is a disability within the meaning of Section 2 of the Act. The Complainant was assigned to the Respondent Department in 1990 and works at its local office in Co Donegal. Because of her disability the Complainant is unable to use a VDU and she performs non-computerised or manual functions only.
In November 2002 a vacancy arose at the local office for a Staff Office, which is a promotional grade from that of Clerical Officer. The post was to be filled by the most senior suitable candidate. The Complainant was the most senior candidate. The process of selection required the Complainant’s Manager to assess her suitability for promotion. In a report dated 13th November 2002 the Manager concluded that the Complainant did not have the necessary qualities or knowledge for promotion. Because of that conclusion the Complainant was not appointed to the vacant post.
The Evidence.
Both parties made comprehensive written and oral submissions to the Court. Evidence was given by the Respondent’s Personnel officer, the Manager of the local office of the Respondent and by the Complainant.
The Respondent’s case.
The Respondent submitted that the duties of a Staff Office are supervisory in nature. The Personnel Officer told the Court that in order to be appointed to that grade a candidate would have to have extensive knowledge of the services and schemes provided by the Department. He said that it was a sub-management role and in order to be appointed to the grade a person would have to demonstrate leadership qualities. They would also be expected to have set a good example to other staff. The vacancy at issue was to have been filled by the Personnel Office on a senior suitable basis. The Personnel Officer told the Court that in the absence of a favourable report from her Manager the Complainant could not be appointed to the post.
The Complainant’s Manager, gave evidence before the Court. He said the Complainant was limited by her disability in the work which she could undertake and that this was fully accepted. The Manager told the Court that he found the Complainant uncooperative and unwilling to take on new work which was within her capacity. The witness gave examples of what he regarded as the Complainant’s inflexibility and recalcitrance in the performance of her duties. He also brought the Court through the assessment report which he had prepared on the Complainant and explained the basis upon which he had concluded that she was unsuitable for promotion. The Manager accepted that he had never formally raised these issues with the Complainant. He claimed however, to have spoken to her informally about them. The Manager denied that the Complainant’s disability influenced his assessment of her suitability for promotion.
The Complainant’s case
The Complainant told the Court that the criticisms of her work performance articulated by her Manager in his evidence to the Court were never raised with her either formally or informally. The witness denied that any basis existed for the strictures contained in her assessment report. The Complainant referred to and controverted each of the points relied upon by the Manager as indicating inflexibility or uncooperativeness in her approach to work. The Complainant told the Court that in the absence of any other basis upon which her suitability for promotions could be impugned she attributed the disputed decision to her inability to work with computers.
The Complainant accepted that in a letter to her Area Manager dated 29th January 2003 she expressed her willingness to accept her Manager's assurances that the decision not to promote her was unconnected with her disability. The Complainant told the Court that this statement was made in the context of a conciliation process in which she was then engaged in relation to the instant dispute.
Facts
The material primary facts, as admitted or as found by the Court, are as follows: -
When the Complainant was first assigned to the Respondent Department in 1990 her disability had a limited affect on her capacity to carry out the full range of a Clerical Officers duties. From 1994 onwards the work of the Department became computerised and the Complainant became confined to a limited range of functions which could be undertaken manually. This in turn progressively restricted the range of experience available to the Complainant in the different duties and tasks involved in running the local office. The amount of manual work available to the Complainant continued to diminish over time. The resulting state of affairs was raised by her Manager with the Area Manager in the context of the staffing levels of the office. In a letter dated 16th June 2000, in response to a suggestion that the office was overstaffed, the local office Manager stated that because the Complainant could not use a VDU the range of work to which she could be assigned was very limited. On that account it was agreed that the Complainant would not be fully reckoned for the purpose of determining any staff surplus.
The Respondent did ask the Complainant’s Optician about the possibility of providing the Complainant with a large VDU (which the Optician advised against). Thereafter no consideration was given to any other initiatives which might allow the Complainant to become more fully involved in the range of work appropriate to her grade. It is noted, however, that after the events giving rise to this claim were raised by the Complainant’s Union a Disability Liaison Officer became involved with the Complainant. As a result the Respondent has sought to have the Complainant professionally assessed so as to determine the options which may be available to assist her in taking on computerised work.
At the material time promotion on seniority was an important feature of employment for civil servants at the Complainant’s grade. Promotion is always contingent on suitability but it is clear from the Personnel Officer's evidence that it is quite unusual for an Officer to be rejected as unsuitable if they have the requisite service. It appears that no more than 5% of candidates would normally be rejected on that basis.
An agreement exists between the trade unions representing civil servants and the civil service management (referred to as Circular 9/84) which provides that where it is apprehended that an Officer’s performance might be such as to render them unsuitable for promotion they should be notified accordingly. Such notification must be given not later than 12 months before the Officer would ordinarily be considered for promotion. The Court is satisfied that the Complainant was never informed that her performance was such as to render her unsuitable for progression.
There was a significant difference of recollection between the Complainant and her Manager in relation to the latter’s approach to the alleged deficiencies in the Complainant’s performance. The Manager recalled having spoken to the Complainant, albeit informally, in relation to a number of incidents in which she had failed to carry out his instructions. The Complainant has no such recollection. What is clear is that any incidents which may have occurred were not regarded as being of sufficient moment as to warrant any formal reprimand of the Complainant or the invocation of the Respondent’s disciplinary procedures against her. In that regard, the Court is satisfied that the Complainant was unaware of any concerns which her Manager had in relation to her suitability for promotions before being informed that she was not being recommended for the Staff Officer post.
The Law Applicable
The proscription of discrimination on grounds of disability is not absolute. If a person is, by reason of a disability, unable to fully undertake the duties of a position they may, in accordance with Section 16(1) of the Act, be lawfully refused employment or promotion into that position (seeA Worker v An Employer16 [2005] ELR 159). The applicability of that qualification is itself restricted by the provisions of Section 16(3) of the Act which, at the time material to the instant case, provided: -
- (3) (a) 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 person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
Subsection (3), paragraph (b), of Section 16 of the Act imposes a duty on employers to accommodate the needs of an employee with a disability. As was pointed out by this Court inAn Employer v A Worker, the provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in or advance in employment. The effect of an employer’s failure to fulfil the duty imposed by Section 16(3)(b) of the Act is to negate any defence which they might otherwise have under Section 16(1) in a claim of discrimination on the disability ground. (see alsoA Worker (Mr O) v An Employer16 [2005] ELR 113).
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability. InMid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566the EATfor England and Wales considered an appeal from the decision of an Employment Tribunal in which it was held that the obligation imposed on an employer by section 6(1) of the Disability Discrimination Act 1995 (which corresponds to S16 of the Act) included an obligation to carry out a proper assessment of the disabled employee's needs. In the headnote of the report the following statement of the law appears:
- "A proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by S.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on s.6(1) could not be accepted. The making of that assessment cannot be separated from the duty imposed by s.6(1), because it is a necessary precondition to the fulfilment of that duty and therefore part of it…"
The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. However if this results in a diminution of the person’s prospects of advancement in employment it would seem reasonable to conclude, on a purposive construction of the Section, that the employer should then consider if any countervailing measures could be taken to ameliorate that disadvantage.
The proscribed ground - in this case the Complainant’s disability - need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a“significant influence”(seeNagarajan v London Regional Transport[1998] I.R.L.R. 73, per Lord Nicholls at p.576). Moreover, it appears to the Court that a complaint of discrimination will be made out where a causal connection is established between seemingly neutral grounds on which a person is disadvantaged and the disability from which he or she suffers.
Finally, the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (seeNevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).
Burden of Proof
The apportionment of the burden of proof in cases of discrimination is now governed by Section 85A of the Act. The events giving rise to the instant case predate the enactment of that Section. However the Section prescribes a procedural or evidential rule which is applicable in cases which come on for hearing after its commencement (see Djemma Tsourova v. ICON Clinical Research Ltd16 ELR 250). The Section is thus applicable in the instant case.
The rule requires the complainant to establish the primary facts upon which the claim of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination (seeMitchell v Southern Health BoardE.L.R. 201).
Conclusions
The Court first considered if the probative burden shifted to the Respondent. The Court is satisfied that the findings of primary fact made by the Court and recited earlier in this determination are such as to raise an inference of unlawful discrimination Accordingly the Respondent bears the probative burden of establishing that its failure to promote the Complainant was unconnected to her disability.
It is clear that from 1994 onwards there was a diminishing range of duties to which the Complainant could be assigned. Over this period the Respondent was engaged in a continuing quest to find appropriate work at which she could be gainfully employed. On the evidence, the Court considers it is more probable than not that the difficulties posed by this state of affairs affected the Respondent’s perception of the Complainant's work performance and did influence the Manager in formulating his assessment of her suitability for progression.
The difficulties in finding useful work for the Complainant and her resulting failure to accrue experience commensurate with her length of service were a consequence which flowed from her disability. The Respondent should have anticipated the likely impact which those consequences would have on the Complainant's promotional prospects. Against that background the Respondent had a duty under Section 16(3)(b) of the Act to assess the Complainant’s position and to at least consider, in consultation with her, what if any alleviating measures could be put in place. The Respondent’s failure to do so negates any direct or indirect reliance which it can now place on her lack of capacity to justify the decision not to recommend her for promotion.
The Respondent contended that the reason why the Complainant was not recommended for promotion was unrelated to her disability and arose solely from a succession of performance related issues. None of those issues were regarded as sufficiently serious, either individually or cumulatively, to warrant any formal record of their occurrence or the taking of any disciplinary measures against the Complainant. It is further noted that the Respondent did not warn the Complainant that there were concerns about her suitability for promotion, as is obligated by Circular 9/84. These factors, combined with the Complainant’s denial that many of the incidents occurred in the circumstances alleged, seriously impairs the weight which the Court can attach to the Respondent’s explanation for its refusal to promote the Complainant.
Finally the Court considered the statement contained in the Complainant’s letter of 29th January 2003 (referred to above) in which she appeared to accept her Manager's non-discriminatory explanation for not recommending her for promotion. It is noted that this concession was made in the context of a conciliation process and may have been influenced by a desire on the Complainant’s part to effect an amicable settlement of her dispute. In any event, this statement cannot deflect the Court from conducting its own objective assessment of the facts of the case and reaching a conclusion based on the law applicable to those facts. Further, there is no principle of law of which the Court is aware by which the Complainant could not resile from her previous statement in initiating the within proceedings.
On the evidence as a whole the Court must conclude that the Respondent has failed to discharge the burden which it bears of rebutting the presumption of discrimination which arises on the facts of this case. Accordingly the Complainant is entitled to succeed.
Determination.
The appeal herein is disallowed. The Decision of the Equality officer is affirmed and the Respondent is directed to pay to the Complainant compensation in the amount of
€10,000 and to provide training to relevant staff pursuant to its obligation to provide reasonable accommodation to staff with disability, in accordance with the said decision of the Equality Officer.
Signed on behalf of the Labour Court
Kevin Duffy
30th January, 2006______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.