FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A GOVERNMENT DEPARTMENT (REPRESENTED BY DAVID KEANE B.L. (INSTRUCTED BY CHIEF STATE SOLICITOR) - AND - A WORKER DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal Under Section 83 Of The Employment Equality Act, 1998 - Dec-2004-076
BACKGROUND:
2. Labour Court hearings took place on Tuesday 14th June 2005 and Tuesday 6th June 2006. The following is the Court's Determination:
DETERMINATION:
The Appeal
This matter came before the Court by way of an appeal by Mr O’S (the Complainant) against a Decision of the Equality Tribunal in a claim which he had brought against the Department of Justice Equality and Law Reform (the Respondent) alleging discrimination on the disability ground, contrary to the provisions of the Employment Equality Act 1998 (the Act).
Background.
The Complainant is a Civil Servant employed by the Respondent. Since 1997 the Complainant has suffered from ulcerative colitis, an inflammatory bowel disease affecting the large intestine.
In February 2002, the Respondent advertised its intention to hold a competition for promotion to Assistant Principal, Probation & Welfare Service. Applications were invited from Senior Probation & Welfare Officers (of which the Complainant was one). On 27th February 2002, the Complainant applied for the position. On or about March 2002 the Complainant’s condition deteriorated and he was admitted to hospital to undergo surgery. The Respondent arranged to hold interviews for the promotional post on 21st March 2002 and the Complainant was advised accordingly on 12th March 2002. The Complainant was discharged from hospital on 22nd March 2002. The interviews proceeded on 21st March. Because he was hospitalised on the date in question the Complainant did not attend for interview. Consequently his application for the post at issue was not considered further by the Respondent.
In these circumstances the Complainant contends that his illness was a disability within the meaning of the Act and that he was discriminated against by the Respondent on grounds of his disability when it failed or refused to defer his interview until he was physically capable of attending. The claim was investigated by an Equality Officer who found against the Complainant. It is against that decision that he now appeals to this Court.
Position of the parties.
Both parties made comprehensive written submissions which were augmented with oral argument. The Court also heard evidence from the following witnesses: -
-Mr O’S (The Claimant)
-Mrs O’S (The Claimant’s Spouse)
-Ms G (HEO in Personnel Section – Department Justice, Equality & Law Reform)
-Ms T (Personnel Section – Department Justice, Equality & Law Reform)
-Mr McD (Disability Liaison Officer – Department Justice, Equality & Law Reform)
-Mr M (Personnel Officer – Department Justice, Equality & Law Reform)
-Ms D (Assistant Principal – Department Justice, Equality & Law Reform)
The Court also sought to take evidence from Mr T, former Principal Officer, Probation & Welfare Services but he has retired and was unavailable, due to illness, on the dates of the Court hearings or on other dates suggested by the Court. In the circumstances, the Court had no option but to proceed without the benefit of his direct evidence, as the Respondent was unable to say when, if at all, Mr T. might be able to give evidence.
The Complainant’s case.
The Complainant contended that the Respondent knew, or ought to have known, at all material times that he would be unavailable for interview on the day designated. He submitted that the Respondent had a duty under s16 (3) of the Act to afford him reasonable accommodation having regard to his disability. He contends that a deferral of the interview would have constituted reasonable accommodation in his circumstances and that the Respondent is liable for its failure to provide him with such accommodation. In support of his contention in this regard the Complainant relied on the decision of an Equality Officer inHarrington v East Coast Area Health Board(DEC-E2002-001), which Decision was upheld on appeal by this Court in Determination No.021
Evidence of the Complainant
Mr O’S (the Complainant) gave evidence before the Court. He described his illness and its symptoms. He told the Court that he had not taken sick leave between the diagnosis of his complaint in 1998 and the weeks prior to his operation.
The Complainant said that in March 2002 his condition had progressively deteriorated. Eventually, he was advised that surgery was the only option available to him. His told the Court that he was satisfied that his colleagues and people in the Department generally were aware of his condition. He testified that he had a conversation with Ms G, on 1st March 2002, in which he told her of his impending surgery and that he expected to be out of work for between 10 to 12 weeks following the operation. The Complainant told the Court that he again spoke to Ms G by telephone in the week of 4th – 8th March 2002 and that he made it clear in his discussions with Ms G that he wished to remain in the competition and that he wished to be interviewed for the post for which he had
applied.
The Complainant told the Court that he was to be admitted to hospital on the 12th March 2002. On that morning he received by post a letter from the Respondent inviting him to interview on 21st March 2002. He immediately contacted Ms T, who was the nominated contact person, to advise her of his impending hospitalisation and his likely inability to attend for interview on the designated date. The Complainant again indicated that he would require a deferment of the interview.
He returned on 4th June, but on a full-time basis. He agreed that his doctor’s advice was that he should start back on a half-time basis, but he felt so well that, in general, he disregarded this advice. He said that he was available and willing to attend for interview shortly after his discharge from hospital but at no stage was he asked about his availability. In that regard the Complainant told the Court that he had telephoned Ms G. on 3rd April 2002 to tell her that he was now fit enough for interview, but she had told him the competition was over
Evidence of Mrs O’S
Mrs O’S, who is the Complainant’s wife, told the Court in evidence of a telephone call she had with Mr T., who was the Principal Officer with the Respondent and the Complainant’s senior manager, on 15th March 2002. She recalled saying that the Complainant was doing well following his operation, that the prognosis was good and that he still wished to be interviewed. She stated that Mr T. said he had “no power over the rescheduling of interviews”.
In cross-examination the witness said that she understood from what was said to her that Mr T. would pass the matter on to the Personnel Department for attention. The witness told the Court that she was satisfied that Mr T. understood that the Complainant was still seeking to be interviewed and would be available at a later date.
The Respondent’s case.
The Respondent accepts that at the time material to this case the Complainant was suffering from a disability for the purposes of the Act. It denies, however, that its decision not to further consider the Complainant’s application after he failed to attend for interview was discriminatory on the disability ground or at all. It further contends that it was not aware that the Complainant was seeking a deferment of his interview. The Respondent submitted that, on its true construction, s16 (3) of the Act is only applicable in circumstances in which a employer seeks to defend adverse treatment of a person with a disability by relying of their incapacity to perform the duties of the job in question. It was submitted that since the Respondent did not consider the Complainant to be other than fully capable of carrying out the duties of the post at issue, s16 was of no relevance. In that regard the Respondent submitted that s16 (3) cannot ground a free-standing cause of action under the Act. The Respondent further submitted that the Complainant did not suffer discrimination within the meaning of s8 (8) of the Act since he was treated the same as a person without a disability would be treated if they did not attend for interview in relation to a promotion for which they had applied.
Evidence of Ms G.
Ms G, who is a Higher Executive Officer in the Personnel Department of the Respondent, gave evidence before the Court. She recalled that the Complainant had phoned her on 1st March 2002 and had told her that he was going into hospital for an operation. It was Ms G’s recollection that did not at any stage say when he was going into hospital how long he was likely to be out of work.
The witness said that during the week of 4th-8th March 2002, the Complainant had again phoned her inquiring about interview dates. He asked that notification of his interview be sent to his home rather than to work, as he was due to go into hospital. Ms G complied with this request and on 11th March 2002, a letter was sent by her to the Complainant informing him of the time and date of his interview.
Ms G told the Court that she next heard from the Complainant on 3rd April 2002, when she received a call from him in which he enquires as to why he had not been interviewed. At that stage the competition was over. The witness told the Court that she was not aware of the Complainant having sought a deferral of his interview.
In cross-examination, Ms G. agreed that there were no recorded notes of the second phone call of the week of 4th-8th March 2002, although there was a record of the call which he had made on 1st March.
Ms G also confirmed that the only training which she had received in respect of the Act was “on the job” in relation to her role in the Personnel Department of the Respondent. The witness told the Complainant in cross-examination that she was unaware that a person going into hospital constituted a potential disability.
The witness agreed that correspondence in relation to the interview was sent to the Complainant’s home address at his request. She further agreed that this indicated a wish on his part to compete for the post. Ms G denied, however, that he had asked her to have the interviews deferred. The witness said that if anyone had a difficulty in attending on a designated date, or requested a deferral, this would be checked out. There was no such request so the interviews proceeded as scheduled.
Ms G. rejected a suggestion that the two phone calls which she received from the Complainant, and the knowledge that the complainant was going into hospital, should have led to the conclusion that he had a difficulty which might necessitate a deferral of the interview. The witness expressed the view that going into hospital for an operation did not necessarily constitute a disability. Ms G stated she had checked each stage of the procedure with her superiors.
Evidence of Ms T
Ms T. who is an Executive Officer with the Respondent gave evidence. This witness was the nominated contact person for candidates in the competition. She recalled receiving a phone call from the Complainant on 12th March 2002 in which he said that he was going into hospital on that day, that he would be out of work for a considerable period of time and that he would be unable to attend for interview on March 21st. She passed this information on to Ms G.
She denied that the Complainant sought a deferral or that he identified himself as suffering from a disability.
Evidence of Mr McD
Mr McD, who is Assistant Principal in the Personnel Department of the Respondent, gave evidence to the effect that he was overall organiser of the competition. He said that he had been made aware late in 2001 that the Complainant would have to have an operation and would be out of work for some time.
He was aware of the Complainant’s call of the 12th March 2002 but the first he knew of a request for a deferral was when the complainant rang on the 3rd April enquiring as to why he had not been granted one. The witness said that this call was taken by Ms G., who told him what had happened. Before he had a chance to ring the Complainant back, the Complainant rang Mr M (who is Principal
Officer in the Respondent’s Personnel Section) the following morning (4th April).
The witness told the Court that Mr T (Principal Probation & Welfare Service) was anxious to have the posts filled as he was under pressure from the Trade Union to progress the competition and the filling of vacancies. He did not want the interviews postponed and felt that this would be unfair to the other candidates.
Mr McD told the Court that Mr T. had confirmed to him that the Complainant’s wife was very aggrieved about the treatment of her husband by the Department in relation to his matter. He further stated that he was made aware of the Complainant’s request for a deferral of his interview on 3rd April 2002. By that time it was too late to do anything. The witness stated that in his opinion, while sympathetic to the Complainant’s circumstances, it was unlikely that the Department would have acceded to such a request given the prevailing pressures and circumstances as outlined to him by Mr T.
Mr McD. agreed in cross-examination that he had not considered making direct contact with the complainant to see when he might be available for interview, nor did he consider that he might be available for interview before his return to duty. The witness said that he regarded the Complainant as having withdrawn from the interview process.
Evidence of Mr M
Mr M., who is Personnel Officer with the Respondent, gave details on the composition of the interview board established for the purpose of the competition. He became aware on 4th April that a difficulty existed in relation to the Complainant when he received a telephone call from him. He was sympathetic to the Complainant - in fact he had tried, without success, to get the previous panel (on which the Complainant was placed) extended. However he was unable to be of any assistance to the Complainant as the competition was then over.
Evidence of Ms D
Ms D., who is a Assistant Principal Officer with the Respondent, gave evidence of visiting the Complainant at his home on 23rd March 2002, to see how he was feeling after his operation. The Complainant gave her a medical cert for a month and she undertook to pass it on to Personnel, which she duly did. The subject of the interviews came up and she told him that a panel of 5 had been formed. There was also reference to one person who did not turn up. The Complainant indicated that he had not known that the panel was published.
In cross-examination, Ms D. said that she believed that the person did not turn up was the Complainant. At no stage could she recall using the word “deferred” in relation to any candidate.
From the Complainant’s reaction to the news she said “she felt she had put her foot in it” by telling him.
Findings of Fact.
The Court has carefully evaluated all of the evidence adduced and has also observed the demeanour of the witnesses in giving their evidence. There is a material difference in recollection between the Complainant and his wife, on the one hand, and the witnesses for the Respondent on the other, in relation to what was said in the course of telephone conversations before the Complainant was admitted to hospital. The true import of these conversations are of central relevance to the crucial question of whether the Complainant made it clear that he wished to remain in the competition and to that end sought a deferral of his interview, or that it could reasonably have been taken that he was withdrawing from the competition. The Court has come to the view, as a matter of probability, that the recollection of the Complainant and that of his wife are to be preferred over those of the witnesses of the Respondent on these crucial questions. On that basis it has reached the following findings of fact: -
- The Court is satisfied that at all material times the Complainant wished to remain an active candidate for the promotional post at issue. When he became aware that he would have to undergo surgery he telephoned Ms G of the Personnel Department to advise her of this fact. This initial conversation took place on 1st March 2002 and was followed by another telephone conversation approximately one week later. While his medical condition was obviously uppermost in the Complainant’s mind at that time, the Court is satisfied that he was also concerned at the impact which his illness would have on his application for promotion. The Court would regard it as extraordinary if this was not mentioned in the course of these conversation or if the Complainant failed to indicated that he wished to remain in the competition. The fact that he asked to have the relevant documentation sent to his home is corroborative of the fact that the impending interviews were discussed. The Complainant knew that as he would be incapacitated for some time it was highly likely that he would require a special arrangement with regard to the impending interview. The Court accepts that this was conveyed to Ms G.
- The Court is further satisfied that on 12th March the Complainant told Ms T that he would not be available to attend for interview on 21st March because of his illness. In light of his previous conversation with Ms G, this should have been taken as a request for a deferment of his interview.
- The Court also regards the evidence of Mrs O’S as significant on the question of the Complainant position in relation to the interview. This witness gave clear and convincing evidence of her telephone conversation with Mr T in which she made it clear that her husband wished to remain in the competition and that he wished to be interviewed. It appears that Mr T, while indicating his inability to influence the timing of interviews, undertook to pass the request on to the relevant personnel in the Department.
It is clear from the evidence of Mr McD. that Mr T was not well disposed towards a deferral of the interviews. He told Mr McD that he was under pressure to fill the post and that to defer the process would be unfair to other candidates. That conversation is wholly consistent with Mr T having knowledge that the Complainant wished to have his interview deferred and it is corroborative of the evidence of Mrs O’S in that regard. The Court also notes the evidence of Mr McD assumed to the effect that he the Complainant to have withdrawn from the competition. The Court is satisfied that no basis existed in fact for such a belief.
- The Court also regards the evidence of Mrs O’S as significant on the question of the Complainant position in relation to the interview. This witness gave clear and convincing evidence of her telephone conversation with Mr T in which she made it clear that her husband wished to remain in the competition and that he wished to be interviewed. It appears that Mr T, while indicating his inability to influence the timing of interviews, undertook to pass the request on to the relevant personnel in the Department.
- The Court is further satisfied that none of the responsible officials of the Respondent made any enquiry as to when the Complainant might be available for interview before deciding to proceed with competition. The Court is satisfied that this failure is indicative of an unwillingness on the part of key personnel to defer the filling of the posts beyond 21st March 2002.
Finally, and for the sake of completeness, the Court is satisfied that had the Complainant been given an opportunity to do so he would have attended for interview after his discharge from hospital and before his return to work.
- The Court is further satisfied that none of the responsible officials of the Respondent made any enquiry as to when the Complainant might be available for interview before deciding to proceed with competition. The Court is satisfied that this failure is indicative of an unwillingness on the part of key personnel to defer the filling of the posts beyond 21st March 2002.
The Law:
It is common case that the illness from which the Complainant suffered was a disability within the meaning of Section 2(1) of the Act. The essence of the Complainant’s case is that the Respondent discriminated against him on grounds of his disability by not deferring the competition until he could attend for interview. He claimed that the Respondent had a duty to do so by virtue of s16(3) of the Act. The Respondent argued before Equality Officer, and contended equally before the Court, that s16 cannot avail the Complainant in circumstances where his capacity to perform the duties of the relevant post was not an issue.
Section 16 of the Act provides in relevant part as follows: -
- 16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
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.
(2) Not relevant
(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.
- 16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
- (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.
- (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.
The import of this Section was extensively considered by this Court in Determination EDA0413,An Employer v a Worker[2005] 16 ELR 159 and in Determination EDA0419,A Worker (Mr O) v an Employer (No.1)[2005] 16 132. In the former case the Court considered the underlying rationale of the Section and concluded as follows; -
- “Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the recent House of Lord decision in Archibald v Fife Council[2004] I.R.L.R. 651:
- “Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the recent House of Lord decision in Archibald v Fife Council[2004] I.R.L.R. 651:
- ‘But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women.
Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment ….’”
- ‘But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women.
Later in the determination, in relation to the effect ofs.16, the court stated as follows:
- “Prima facie, subs. (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity.Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.
Subsection 1(b) is, however, qualified by subs. (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
- “Prima facie, subs. (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity.Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.
- 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 or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home.
The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull [2001] I.R.L.R. 60).”
- 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 or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home.
In that Determination the Court adverted to the different policy in the law relating to discrimination on grounds of disability as distinct from other forms of discrimination. The Court adverted to the fact that while the law prohibits an employer from treating a woman differently from a man in relation to employment and vice versa, in order to treat a person with a disability equally it is frequently necessary to treat them differently. Also, whereas gender can never be a causative factor in refusing to employ, dismiss or otherwise disadvantaging a person, S.16 (1) of the Act permits such unfavourable treatment in reliance on a person’s disability. It is in that context that the meaning and purpose of s16 of the Act should be considered.
It is clear from those passages quoted above that Section 16(1) operates as a defence to a claim of discrimination on the disability ground. By relying on its terms an employer may avoid liability if he or she can show that the disability in question would prevent the employee or prospective employee from undertaking the duties of the job at issue. However that defence can be negated where the employer fails to provide the employee or prospective employee with reasonable accommodation to offset the limiting effects of the disability.
InA Worker (Mr O) v an Employer (No.1)the Court considered the consequences in law of an employer’s failure to provide reasonable accommodation. It said the following: -
- In this case it is necessary to consider the legal consequences of an employer's failure to fulfil the duty imposed by s.16 (3). It is clear from the Act as a whole that a failure to provide reasonable accommodation in accordance with this section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Act, is defined by s.6. That definition does not include any reference to a failure to fulfil the duty imposed by s.16 (3). Further, there is nothing in the Act, which gives an independent cause of action for an employer's failure to provide special treatment of facilities in accordance with that subsection.
- It appears to the court that the purpose and effect of s.16 (3) is to be found in a reading of s.16 as a whole. As was pointed out in An Employer and A Worker, s.16 (1)(b), prima facie, allows an employer to treat a disabled employee less favourably than others in respect to access to employment if he
or she is not capable of fully carrying out the duties of the post in question. Thus, in an appropriate case, this subsection can provide a full defence to a claim alleging discrimination on the disability ground. That defence is, however, qualified by s.16 (3)(a). This subsection, in effect, provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties.
Section 16(3)(b) then goes on to impose an obligation on employers to do what is reasonable to provide such treatment or facilities.
Considered in this context, the effect of a failure to fulfil the duty imposed by s.16 (3)(b) is to negate reliance on s.16 (1)(b) as a defence to a claim of discrimination to which that subsection relates rather than to provide a separate cause of action for the failure itself.
- It appears to the court that the purpose and effect of s.16 (3) is to be found in a reading of s.16 as a whole. As was pointed out in An Employer and A Worker, s.16 (1)(b), prima facie, allows an employer to treat a disabled employee less favourably than others in respect to access to employment if he
As is clear from that passage the Court was emphatic in holding that Section 16(3) does not provide a free-standing cause of action for an employer’s failure to provide reasonable accommodation for a person with a disability. It operates where an employer seeks to rely on s16 (1) so as to justify treating a worker with a disability less favourably than an able-bodied person. It thus provides a legal antidote to a defence, which could otherwise defeat a complainant’s case. However, where an employer does not seek to raise a defence based on s 16(1), s 16(3) can have no application.
Note:
- Since the occurrence giving rise to this claim s16 has been amended by the Equality Act 2004, which repealed subsection 3 in its entirety and replaced it with a new subsection modelled on Article 5 of Directive 2000/78 of 27th November 2000, establishing a general framework for equal treatment in employment and occupations. This Article imposes a positive duty on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment. A similar requirement is now incorporated in s16 (3) of the Act as amended. Thus it would appear that the law now provides for the type of free-standing cause of action contended for by the Complainant in the instant case.
- However, the amendment to the Act was enacted on 18th July 2004 and cannot have retrospective effect. Moreover, the period allowed for transposing theDirective ran up to 2nd December 2003 and the obligation on national courts to interpret their domestic law in harmony with the Directive could only apply in respect of events after that date (on this point see, most recently, the Judgment of the ECJ in case C-212/04
Adeneler and others v Ellinikos Organismos Galaktos (ELOG),Unreported, 4th July 2006).
- However, the amendment to the Act was enacted on 18th July 2004 and cannot have retrospective effect. Moreover, the period allowed for transposing theDirective ran up to 2nd December 2003 and the obligation on national courts to interpret their domestic law in harmony with the Directive could only apply in respect of events after that date (on this point see, most recently, the Judgment of the ECJ in case C-212/04
- Thus, while the law may have changed in the interim, at the time material to this case s16 (3) did not, in and of itself, provide a free-standing cause of action under the Act. According the Court must accept the respondent’s submissions to that effect.
This conclusion, however, does not dispose of the case. The Court must still consider if the impugned failure of the Respondent to accommodate the Complainant by moving the date of his interview constituted discrimination by virtue of s8 of the Act. Section, 8(1) provides as follows: -
- 8.—(1) In relation to—
access to employment,
conditions of employment,
training or experience for or in relation to employment,
promotion or re-grading, or
classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
- 8.—(1) In relation to—
Subsection (8) of this Section provides: -
(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the
discriminatory grounds—
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
The effect of subsection (8) is to prohibit an employer from refusing or deliberately omitting to afford an employee access to the same opportunity for promotions as is afforded other employees on any of the discriminatory grounds. This is without prejudice to subsection (1), which contains a general prohibition of discriminate in relation to,inter alia, promotion. Further, it is trite law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations (see Case C-279/93Finanzamt Koln-Altstadt v Schumacker[1995] E.C.R. I-225, andCampbell Catering Ltd v Aderonke Rasaq[2004] 15 ELR 310).
In addressing this point Counsel for the Respondent submitted that the Complainant was not discriminated against in terms of s 8(8) because he was treated the same as any other person which failed to attend for interview on that day. Counsel postulated the position of a person who failed to attend because of bereavement or an illness not being a disability.
The Court does not accept this line of argument. There was no evidence of a person in the circumstances suggested by Counsel having been either refused or granted a deferral of an interview and the Court cannot reach conclusion based on mere conjecture. Moreover, on its plain and ordinary meaning s8(8)(a) relates to a situation in whichanothereligible and qualified person is afforded an opportunity to attain promotion which is not afforded to the person claiming discrimination. All candidates, including the Complainant, were required to attend for interview on the same day in order to be considered for promotion. The date specified was one on which other eligible and qualified candidates could attend but on which the Complainant was physically incapable of attending by reason of his disability. It was thus a case of applying the same rule to different situations and thereby affording other candidates the opportunity to be considered for promotion while denying that opportunity to the Complainant.
The Court does not suggest, nor could it be seriously contended, that an employer must defer the filling of a job indefinitely in order to accommodate a candidate who is ill and unable to attend for interview. Candidates for employment or promotion are generally interviewed within the time frame in which the post must be filled. Candidates with a disability are entitled to no more than that.
However, where, as in the instant case, a disabled candidate could attend if a reasonable deferment of the interview were granted, a refusal to grant such a deferment must constitute discrimination.
The Court is satisfied that the treatment complained in this case comes within the intendment of s8 of the act on the basis of the plain and ordinary language used in the Section.
Further, and for the sake of completeness, the Court is satisfied that such a result reflects the plain intention of the Oireachtas as ascertained from the Act as a whole. In including disability amongst the discriminatory grounds, the Oireachtas clearly intended that persons with a disability would have a right to equal treatment in employment and the opportunity to fully participate in and advance in employment within the limits of their individual capacity. That right can only be vindicated if employers have a concomitant duty to afford employees with a disability an equal opportunity to advance in employment as that afforded to others. That duty could not be fulfilled by offering a disabled employee an opportunity which is illusory in the circumstances of their disability when a reasonable alternative would be of real utility.
Conclusion.
On the findings of fact made by the Court and set out earlier in this Determination, the Respondent was aware of the Complainant’s desire to compete for the promotions at issue notwithstanding his illness. He was discharged from hospital on the day following the interviews. He was willing to attend at interview while recuperating and he could have been afforded an opportunity to do so within a reasonable time after the scheduled interviews. While the Respondent may have assumed that the Complainant would not be available to attend until after he returned to work, nothing which was said by or on behalf of the Complainant could have conveyed that impression and in fact the opposite was the case.
For all of the reasons referred to, the Court is satisfied that in requiring the Complainant to attend for interview at a time when he was physically incapable of so doing because of his disability constituted an act of discrimination contrary to section 8 of the Act. Accordingly the Complainant is entitled to succeed.
Determination.
The Complainant was discriminated against by the Respondent contrary to s8 of the Act. His appeal is allowed and the Decision of the Equality Officer is set aside. The Court is satisfied that the appropriate redress is an award of compensation for the effects of discrimination. In the circumstances of the case the Court measures the quantum of compensation which is fair and reasonable in the amount of €20,000. The Respondent is directed to pay the Complainant compensation in that amount.
Signed on behalf of the Labour Court
Raymond McGee
13th September 2006______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.