O'SULLIVAN
AND
SIEMENS BUSINESS SERVICES LTD.
(REPRESENTED BY WILLIAM FRY, SOLICITORS)
1. DISPUTE
This dispute involves a claim by Mr. Martin O'Sullivan that he was discriminated against by Siemens Business Services Ltd. on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 and 16 of those Acts, when it failed to recruit him to the position of IT Support Specialist following interview in November, 2004 and in the course of the selection process it failed to furnish reasonable accommodation to him contrary to the Act.
2. BACKGROUND
2.1 The complainant, who has a visual impairment, attended for interview for the post on 28 November, 2004. Part of the selection process involved completing a technical assessment. The complainant did not sit this test as it was only available in written format. He claims that he was therefore disadvantaged as compared with the successful candidates (all of whom completed the test), that the respondent failed to provide him with reasonable accommodation in respect of the test and this failure is contrary to section 16 of the Acts. The complainant further contends that he was suitably qualified for the post and that the respondent took his visual impairment into account in deciding not to appoint him to it. The respondent accepts that it failed to furnish the complainant with the technical test in an electronic format but rejects the assertion that it discriminated against him in not selecting him for employment.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 27 January, 2005. 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 Act. Submissions were received from both parties and Hearings of the complaint took place on 18 and 28 August, 2006. A small number of points arose at the final hearing which required further clarification and this process concluded in early September, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is visually impaired, submitted his CV to the respondent in response to an advertisement for positions as IT Support Specialist with it. He states about a week before he attended for interview (28 November, 2004) he spoke on the telephone with Ms. Morry, Recruitment Specialist with the respondent and in the course of this conversation he informed her he was visually impaired, adding that although he could read from a computer with the appropriate software, he was unable to read printed documentation and suggested that the technical test to be completed by candidates could be furnished in electronic format to enable him complete it. He adds that when he attended for interview he was asked a series of questions, some of which related to his technical capability and he did not complete the actual test. He contends that all other candidates completed the test at that stage of the selection process, that the test was an integral part of the process as it was designed to establish candidates' level of technical knowledge and the fact that he was not permitted to complete the test because of his disability constitutes less favourable treatment of him contrary to the Acts. He further submits that the failure of the respondent to furnish him with the test in a usable format, given the nature of his disability, is contrary to section 16 of the Acts insofar as it did not take appropriate measures to enable him have access to employment.
3.2 The complainant further alleges that he was suitably qualified for the post and that the decision of the Interview Panel not to select him was influenced by the fact that he was visually impaired. He states that shortly after he was notified his application was unsuccessful he contacted Ms. Morry by telephone on two separate occasions seeking feedback from the interview process. He alleges that during the course of one of these conversations Ms. Morry confirmed to him that his vision impairment was a factor in the decision not to recruit him. The complainant submits that this constitutes discrimination of him on grounds of disability contrary to the Acts
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that it did not provide the complainant with an electronic version of the technical test. It further accepts it was aware that he was visually impaired - although not the extent of the impairment - from the telephone conversation with Ms. Morry before the selection process commenced, although it denies that he requested the test in electronic format at that time. It states that all other candidates completed the test and that it was an integral part of the selection process - candidates had to achieve a mark of 40% or better on the test to be considered suitable for employment. It adds that in an effort to address the fact that the complainant did not complete the test a number of technical questions were asked of him at interview, although the full test was not put to him.
4.2 The respondent rejects the assertion that it treated the complainant less favourably on grounds of disability in the course of the interviews. It states the Interview Panel decided that the complainant was not suitable in terms of experience - working in a pressurised environment and technical knowledge - in particular issues around software, which were necessary for the post in question. It submits that the process was conducted in an objective fashion and that it yielded candidates who were the most suitable for the positions. The respondent accepts that the complainant spoke with Ms. Morry - who chaired the Interview Panel - on two separate occasions subsequent to the interviews. It states that in the course of the second conversation the complainant, whose manner was pushy, indicated to her that he wished to pursue a training course and that in order to secure a place on the course he needed her to confirm that his application for employment had been unsuccessful because of his vision impairment. It adds that Ms. Morry believed she was assisting the complainant and therefore indicated that his disability was an issue. It submits that the comment was taken entirely out of context and it rejects the assertion that his disability was a factor taken into account at interview.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or Siemens Business Services Ltd. discriminated against Mr. O'Sullivan on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 and 16 of those Acts, when it failed to recruit him to the position of IT Support Specialist following interview in November, 2004 and in the course of the selection process it failed to furnish reasonable accommodation to him contrary to the Acts. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 provides as follows:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his disability. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 Section 16 of the Acts provides, inter alia,
"(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, ....if the individual -- ....
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as 'appropriate measures') being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -
(i) to have access to employment ....
unless the measures would impose a disproportionate burden on the employer."
5.4 The respondent stated that the technical test was an integral part of the selection process. It further stated at the Hearing that candidates had to achieve a minimum score in the test in order to demonstrate an acceptable level of technical knowledge and that failure to do so would be fatal to a candidate's prospects of employment. It accepts that the complainant was not afforded the opportunity to complete the test as other candidates were. I am satisfied that this failure arose from the complainant's vision impairment and that he was treated less favourably than the other candidates as a consequence. The respondent acknowledges that it was aware of his vision impairment prior to the selection process commencing. Whether or not it was aware of the extent of this impairment is irrelevant in this instance - the Act places an obligation on the employer to provide reasonable accommodation to prospective employees at recruitment stage unless is gives rise to a disproportionate burden - and it should have made further enquiries as to the complainant's needs in that regard. The complainant states he requested that the test be furnished to him in electronic format, a point disputed by the respondent. On balance however, I accept the complainant's version as the more likely scenario. The Acts provide a defence to the employer if the provision of appropriate measures would impose a disproportionate burden on it. The provision of the test in electronic format could not, in any sense, be considered as imposing a disproportionate burden on the respondent and it cannot therefore rely on the defence at section 16(3) of the Acts.
5.5 I shall now turn to the second element of the complainant's claim - that he was discriminated against on grounds of disability in the course of the interview process. I note from the Job Specification that the role of IT Support Specialists involved "the provision of resolution to Help Desk service requests in a timely manner and to demonstrate technical expertise and customer service skills. The role will require individuals who are highly motivated with a demonstrated ability to work under pressure...". It also indicated that the experience profile was "previous helpdesk experience and a solid IT background.". The complainant had worked in an IT helpdesk/trouble shooting environment from October, 2000-July, 2003, although at the time he applied for the post with the respondent he had been working as an Administrator in a publishing company with some IT duties. He has a number of IT based qualifications. The respondent furnished the CV's of the four successful candidates. It appears that each of those candidates were employed in a helpdesk/support role at the time of the selection process and all had 3rd level IT qualifications - some at degree level. I am satisfied therefore that their experience and qualifications were superior to that of the complainant. In addition, the interview process entailed candidates being assessed across five pre-determined criteria and interview notes were furnished for three of the candidates - the other could not be located. Having evaluated all of the evidence submitted by both parties I am not satisfied that the complainant has discharged the initial burden of proof required of him and his claim on this point must therefore fail. For completeness I wish to address the issue concerning the telephone conversation between the complainant and Ms. Morry after the interviews. On balance, I prefer the respondent's version of events that she agreed the complainant's disability was a factor in the selection process in order to enable him secure a place on a training course.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that -
(i) the complainant failed to establish a prima facie case of discrimination 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 relation to the interview process for the position of IT Support Specialist conducted by the respondent in November, 2004.
(ii) the respondent discriminated against the complainant 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 when it treated him less favourably than other candidates without a vision impairment in respect of the technical test which candidates were required to complete as part of the selection process. The respondent failed to provide a reasonable accommodation to the complainant in accordance with section 16 of the Acts and cannot rely on the defence of disproportionate burden available under section 16(3) of the Acts.
6.2 I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004 that the respondent pays the complainant the sum of €4,000 by way of compensation for the effects of the discriminatory treatment on him. The award does not contain any element in respect of loss of income on the part of the complainant.
____________________________
Vivian Jackson
Equality Officer
22 November, 2006