PARTIES
MR. A
AND
A PUBLIC SECTOR ORGANISATION
(REPRESENTED BY MS. MARGUERITE BOLGER BL
INSTRUCTED BY BCM HAMBY WALLACE - SOLICITORS)
File No: EE/2004/177
Date of issue 16 November, 2006
1. DISPUTE
This dispute involves a claim by Mr. A that he was discriminated against by a public sector organisation on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in respect of access to employment following a selection process in August, 2001.
2. BACKGROUND
2.1 The complainant applied for a post as a Specialist Training Officer with the respondent in May, 2001. On 7 August, 2001 he was informed that he had been placed sixth on the Panel following interview. In the weeks that followed the respondent offered employment to the complainant on foot of his placement on the Panel on two separate occasions, both of which he accepted by return of post. When, in mid-October, 2001 he had not heard from the respondent about a commencement date he telephoned it and was informed that there was "an issue" which required clarification and his appointment was not ratified. The complainant alleges that the respondent imputed a disability to him and refused to ratify his appointment at that time. He further alleges this constitutes discrimination of him on grounds of disability contrary to the Act and that this treatment continued until he was eventually appointed to the position on 31 January, 2005
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 3 August, 2004. In accordance with her powers under the Acts 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 Acts. Submissions were received from both parties and a Hearing of the complaint took place on 8 November, 2006. At the outset of the Hearing Counsel for the respondent informed the Tribunal that her client accepted it had imputed a disability to the complainant and consequently its treatment of him constituted discrimination contrary to the Acts. She added that the only matter for decision therefore was the redress which the Tribunal could order in the claim.
2.3 Counsel for the respondent argued that as the complainant was not in receipt of remuneration from the respondent at the time of the discriminatory treatment the Tribunal is limited in respect of the compensation it can order under section 82(4) of the Acts. The complainant agreed with Counsel's argument on this point. When questioned by the Equality Officer Counsel accepted that section 82(4) relates only to monetary compensation and did not prevent the Equality Officer from exercising his powers under section 82(1) of the Acts is assessing the appropriate level of redress in the circumstances. She submitted however that in assessing the appropriate redress in this instance the Equality Officer should have regard to the fact that the respondent had accepted it discriminated against the complainant and had apologised to him in writing in the course of the Hearing.
3 CONCLUSIONS OF THE EQUALITY OFFICER
3.1 In light of the respondent's admission that it discriminated against the complainant contrary to the Acts the only issue for decision by me is the level of redress to award in this instance. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
3.2 It has been a practice of this Tribunal and the Labour Court in cases where discrimination has been held to occur, to place the complainant in the position s/he would have been in had the discriminatory treatment not taken place. It is clear that the respondent considered the complainant suitable for employment as it offered him the post on two separate occasions in August, 2001. In the course of accepting these offers he informed the respondent that he would be available to take up duty from mid/late October of that year. I am satisfied, given the respondent had at least commenced all preliminary matters in respect of the appointment by early October, 2001, that had it not acted in the manner in which it did the complainant would have been appointed no later than November, 2001. I note that the complainant took up the post on 31 January, 2005 on terms and conditions which are consistent with his personal circumstances. I order that this appointment is backdated to 1 November, 2001 and that the complainant receives the full range of employment benefits associated with the post, including remuneration (with any necessary adjustments) from that date.
3.3 Counsel for the respondent argued that the recent actions of her client should mitigate the level of redress that I award in this case and I accept the merits of this submission. I note that at the hearing, in addition to accepting that it discriminated against the complainant, officials of the respondent furnished him with a written apology - which he accepted. However, the respondent delayed the appointment for over three years and it took over a year to furnish the complainant with any appreciable response to his initial query as to what was happening in respect of his appointment, despite several attempts (oral and written) by the complainant in that regard. This was clearly a source of some distress to him and I am of the view that monetary compensation is warranted in the circumstances. I therefore order that the respondent pay the complainant the sum of €4,000 by way of compensation for the distress suffered by him.
4. DECISION OF THE EQUALITY OFFICER.
The respondent accepts that it discriminated against the complainant on grounds of disability in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act. It should be noted that the complainant had worked in the sector for another employer for a number of years previously and was not a new recruit seeking his first employment. I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998 and 2004 -
(i) that the respondent backdate the complainant's appointment to the post in question from 31 January, 2005 to 1 November, 2001 on the basis of the terms and conditions, including the weekly hours of attendance, which apply at present. In addition, the complainant should receive the full range of employment benefits associated with the post, including remuneration (with any necessary adjustments) and recognition of service from 1 November, 2001.
(b) that the respondent pay the complainant the sum of €4,000 by way of compensation for the distress suffered by him as a result of the discriminatory treatment. This award does not contain any element in respect of loss of income on the part of the complainant
____________________________
Vivian Jackson
Equality Officer
16 November, 2006