FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A TECHNOLOGY COMPANY (REPRESENTED BY WILLIAM FRY SOLICITORS) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998, Dec-E2006-058
BACKGROUND:
2. Labour Court hearings took place on 24th July, 2007, and 9th August, 2007. The following is the Court's Determination.
DETERMINATION:
Background:
For ease of reference, in this Determination the parties are referred to using the designations prescribed by s 77(4)(a) and (b) of the Employment Equality Act, 1998, as amended (the Act). Hence the Worker is referred to as “the Complainant” and the Technology Company as “the Respondent”.
The Complainant applied for employment with the Respondent in the position of IT Support Specialist in or about November 2004. The Complainant has a visual impairment, which is a disability within the meaning of s 2 of the Act. In furtherance of his application the Complainant attended for interview on 28th November 2004. Part of the selection process involved completing a technical assessment in written form. The Complainant was unable to undertake this assessment due to his disability. The Respondent did not offer the Complainant employment.
The Complainant claimed that he was not offered employment because of his disability. He further claimed that the Respondent had failed to provide him with reasonable accommodation so as to enable him to undertake the technical assessment. He submitted a claim to the Equality Tribunal pursuant to s 77 of the Act alleging that in failing to appoint him to the disputed post the Respondent had discriminated against him on the disability ground, in contravention of s 8 of the Act. The Complainant further alleged that the Respondent had breached the statutory duty imposed on it by s 16(3)(b) of the Act in failing to take appropriate measures to enable him to fully participate in the selection process.
The claims were investigated by an Equality Officer of the Equality Tribunal. The Equality Officer found that the Respondent’s decision not to offer the Complainant employment was not on grounds of his disability. Accordingly this aspect of his claim was disallowed. The Equality Officer found that the Respondent had failed to provide the Complainant with appropriate measures so as to allow him to undertake the technical assessment, in contravention of s 16(3)(b) of the Act. The Complainant was awarded compensation in the amount of €4,000 by way of redress.
The Respondent did not appeal this aspect of the Equality Officer's Decision and accepts that it acted unlawfully in failing to facilitate the Complainant with reasonable accommodation so as to allow him to undertake the written test. The Respondent apologised to the Complainant for its failure in that regard.
The Complainant appealed to this Court against so much of the Equality Officer’s Decision which held that he had not suffered discrimination in the filling of the disputed posts. .
Position of the parties.
The Complainant’s case
The Complainant told the Court in evidence that he applied for the disputed post in response to an advertisement. He subsequently received a telephone call from Ms V. M., who was a Recruitment Specialist attached to the Human Resources Department of the Respondent at the material time. He said that they discussed several matters relating to the vacant post. In the course of this conversation the Complainant asked Ms M if there was to be a written test as part of the selection process. Ms M confirmed that there was such a test. The Complainant then told Ms M that he was visually impaired and could not read from paper. He then asked if the test could be provided in electronic form as he could only read from a computer.
According to the Complainant, Ms M’s tone of voice then changed and she told him that there was a lot of paperwork involved in the job on offer. The Complainant told Ms M that he had filled a similar job elsewhere and had no difficulty in working from a computer. Ms M told the Complainant that she would discuss his position further with her colleagues and decide if he should be invited to interview. Subsequently the Complainant received a telephone call from Ms M in which she invited him to attend for interview at the Respondent’s premises in Cork.
The Complainant said that he presented for interview on Monday 28th November 2004. He was met by Ms M who told him that he would not be given the written test. The interview, which was conducted by Ms M and two others, then proceeded.
The Complainant told the Court that in the month of December 2004 he received a letter from the Respondent informing him that his application was unsuccessful. He said that he considered his position for some time and decided to contact the Respondent in relation to his rejection. The Complainant telephoned Ms M on 7th January 2005. He told the Court that he asked Ms M if he could take the written test and be considered for future vacancies. Ms M told him that there were no further vacancies for which he could be considered. According to the Complainant, Ms M went on to say that the reason he was not offered the position at issue was that the two managers who participated in the interview process had concerns about his inability to work from paper.
The Complainant went on to tell the Court that he asked Ms M directly if he was not offered the post because of his impairment and that she answered him in the affirmative.
On 11th January 2005 the Complainant again telephoned Ms M. It was his recollection that in this conversation he asked Ms M to confirm in writing that his visual impairment was the reason why he was not offered employment with the Respondent. He said that he required this confirmation so as to assist him in obtaining a place on a FAS course. The Complainant recalled that Ms M agreed to provide the confirmation sought but indicated that she would do so by e-mail. She asked the Complainant for his e-mail address, which he provided. However, he did not receive the written confirmation which he had requested.
The Complainant told the Court that he typed a contemporaneous note on his computer of both telephone conversations with Ms M, copies of which he put in evidence. He said that he had touch-typing skills and normally made notes on his computer in this way.
In cross-examination the Complainant accepted that it was he who first raised the issue of his impairment with Ms M. He also accepted that he was asked a series of technical questions at the interview. He did not accept, however, that the range of questions put to him equated with the questions contained in the written test undertaken by other candidates. He formed this opinion having had some of the questions in the written test read over to him by a friend.
The Complainant accepted that he did not make any complaint in the course of the interview at not being provided with a written test.
The Complainant further accepted that he had made alterations to his notes of the telephone conversations with Ms M by inserting his and Ms M's names so as to identify the speakers. He said that as he made the notes he left a blank space for the name of the speaker, which he subsequently filled in. This, he said, was the only alteration and that the notes were otherwise a verbatim transcript of the conversations. The Complainant accepted that he did not inform Ms M that he was transcribing the conversation.
The Respondent’s case
Ms V. M. gave evidence. She told the Court that at the material time she was a recruitment specialist attached to the Human Resources Department of the Respondent. In that capacity she dealt with the Complainant’s application for employment.
She said that at the time there were four positions available. There were 14 applicants for these positions.
Ms M recalled her telephone conversation with the Complainant in November 2004, prior to his interview.
She said that she found the Complainant “pushy” in his attitude. She agreed that he had asked about a written test and informed her of his inability to work from paper. She said that he was insistent on being interviewed and that she arranged for him to travel to Cork for an interview. She accepted that the Complainant had asked if he could undertake the written test electronically. She had enquired as to the possibility of an electronic version of the test being obtained but none was available.
The witness told the Court that she and two technical Managers interviewed the Complainant on 28th November 2004. It was their unanimous view that he was not suitable. They formed this view because the technical knowledge displayed by the Complainant was considered inadequate by the technical experts on the interview panel.
Ms M recalled the two telephone conversations with the Complainant, on the 7th and 11th January 2005. According to Ms M’s recollection, the conversation of 7th January was of short duration. She said that the Complainant had asked if he could sit the written test with a view to being considered for future vacancies. She said that there were no other vacancies and the conversation then ended.
Ms M’s recollection was that the second telephone conversation, on 11th January, was longer in duration than that of the 7th January. Mr M recalled that it was in this conversation that the Complainant asked if his visual impairment was the reason why his application was unsuccessful. Ms M accepted that she told the Complainant that there was a concern at his inability to work from paper.
The Court was told that the Complainant went on to ask Ms M for a letter confirming that he was not offered employment because of his impairment. He said that he needed this confirmation in order to obtain a place on a FÁS Course. She at first agreed to provide the confirmation requested. However, immediately after the telephone call ended, she formed the view that it would be imprudent to issue such a letter and she decided not do so. The witness heard nothing further from the Complainant until she received notification of his complaint to the Equality Tribunal.
In response to a question from the Court the witness confirmed that the Complainant’s inability to read from paper was of concern to the two technical Managers on the selection board. She gave it as her opinion that the Complainant’s impairment was a factor which influenced the decision not to offer him employment.
Conclusions of the Court.
It is common case that the Complainant is a person with a disability within the meaning of the Act. It is also accepted that the Respondent failed to take reasonable measures so as to enable him to undertake a written test which was an integral part of the selection process. There is a finding by the Equality Officer to that effect, which the Respondent has not sought to disturb. Hence, the only fact in issue in this case is whether the Complainant’s disability was a factor which influenced the decision to reject his application for employment to a degree which renders the Respondent liable for unlawful discrimination.
In cases of alleged discrimination the Court normally must first consider the apportionment of the probative burden as between the parties. This is now governed by s 85A of the Act, as inserted by s 38 of the Equality Act 2004. This Section provides as follows: -
- 85A.—(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.
Article 2 of Directive 2000/78 EC on a Framework for Equal Treatment in Employment and Occupations provides that the principle of equal treatment means that there shall be no direct or indirect discriminationwhatsoeveron,inter alia, grounds of disability (emphasis added). It is well settled that in interpreting national law the Court must do so in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive (seeMarleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135). It is therefore necessary for the Respondent to prove on the balance of probabilities that its decision not to offer the Complainant employment was in no sense whatsoever based on his disability.
When the burden of proof shifts to a Respondent there are a number of factors which should be taken into account in deciding if that burden has been discharged.
Firstly, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (seeBarton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales inWong v Igen Ltd and othersIRLR 258).
Secondly, the requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable that a person without a disability. 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).
Finally, inWong v Igen Ltd and othersPeter Gibson LJ considered the scope which should be ascribed to the notion of “no discrimination whatsoever”. He held that if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.
In this case the evidence of Ms M suggested that the two technical Managers who participated in the selection of candidates were influenced, inter alia, by the Complainant’s inability to work from paper and hence by his disability. It was also suggested that the degree of influence was more than trivial. The two Managers concerned were not available to give evidence before the Court.
In these circumstances the Court is satisfied that the Respondent has not discharged the burden of proving that the principle of equal treatment was not denied to the Complainant.
Section 16 of the Act provides, in effect, that an employer is not obliged to employ a person with a disability unless that person is fully capable of performing the duties of the position at issue. The Section goes on to provide that a person with a disability is to be presumed to be fully capable of discharging the duties of a post if they would be so capable if provided with reasonable accommodation.
Section 16, however, provides a defence to a claim of discrimination on the disability ground. It is for the Respondent to raise and make out a defence. In the instant case the Respondent has not sought to rely on s 16 to justify its rejection of the Complainant’s application for employment.
For all of the reasons set out herein the Court is satisfied that the Complainant was discriminated against by the Respondent when it rejected his application for employment. Accordingly he is entitled to succeed in his appeal.
Redress.
The Court is satisfied that the appropriate form of redress in this case is an award of compensation. The Court is of the view that the combined effect of the Respondent’s failure to provide the Complainant with reasonable accommodation in the selection process, and the consideration which it gave to his disability in deciding on his application, constituted a single consolidated act of discrimination. In these circumstance the Court considers that a composite award of compensation is appropriate.
In measuring the quantum of compensation which is fair and equitable in the circumstances the Court has taken account of the award made by the Equality Officer in the amount of €4,000. In the light of the Determination herein that award must be increased. The Court has also taken account of the evidence of Ms Morry that the main or dominant reason for not offering the Complainant employment was his lesser qualifications and experience relative to that of other candidates. The clear imputation of that evidence was that, absent the discrimination, the Complainant would still not have been offered employment. However, the Court cannot speculate on how the Complainant might have fared in the competition if it had been conducted free of discrimination nor can it discount the possibility that he could have been successful.
In its considerations on quantum, the Court has also had full regard to the principle of effectiveness and proportionality which is enshrined in the law of the European Community. These principles require that the sanction for breaches of Community rights must be effective, proportionate and dissuasive (Von Colson and/KamannECR 1891).
Having regard to all of these consideration the Court determines that the Complainant should receive a composite award of compensation in the amount of €12,000 for the effects of the discrimination which he suffered. This award is inclusive of the €4,000 awarded by the Equality Officer. No element of this composite award is by way of compensation for loss of earnings.
Determination
The Complainant’s appeal is allowed. The Decision of the Equality Officer is varied in the terms of this Determination and the Respondent is directed to pay the Complainant compensation in the amount of €12,000.
Signed on behalf of the Labour Court
Kevin Duffy
11th Sept, 2007______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.