DEC-E2008-044 - Full Case Report

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS 1998 - 2008

EQUALITY OFFICER’S DECISION DEC-E2008-044

PARTIES

Mr Dermot Roche

- V -

The Office of Public Works

File reference: EE/2006/151

Date of issue: 08 August 2008

1.         DISPUTE

1.1       This dispute concerns a claim by Mr Dermot Roche that he was (i) discriminated against in relation to access to employment on the grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts, and (ii) subjected to victimisation by the respondent within the meaning of Section 74(2) of the Acts.

1.2       Thecomplainant referred his claim of discrimination to the Director of the Equality Tribunal on 9 May 2006 under the Employment Equality Acts 1998 - 2008.  In accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.  Submissions were sought and received from the parties, and a hearing was held on 31 January 2008.  Further information was received from the respondent on 28 February 2008 and observations on this information were received from the complainant on 26 March 2008.

2.         SUMMARY OF THE COMPLAINANT'S CASE

2.1       The complainant states that he provided guided tours at Tintern Abbey between 1994 and 1997 on an informal, voluntary basis.  From 1998, the Respondent has operated an official visitor service at the site.  Since that time, the complainant has applied each year for the position of tour guide at Tintern Abbey without success. 

2.2       The complainant submitted that the first date of discrimination occurred in March 1998 and that the most recent date of discrimination was in March 2006

2.3       The complainant submitted that the respondent ignored his college achievements and years of practical experience.

2.4       The complainant submitted that the respondent gave irregular and poor marks for subjects which were entitled to higher marks.

2.5       The complainant submitted that the respondent made false assumptions about him as a candidate for the position of tour guide.

2.6       The complainant submitted that the respondent was determined to keep him out of a position at Tintern Abbey and refused to communicate with him on the matter.

2.7       The complainant submitted marking sheets from the 2007 competition, which had been received from the respondent, in support of his claim.

2.8       The complainant submitted that there are questions quoted on the marking sheets which he was not asked at interview.

2.9       The complainant submitted that the assessors had gone out of their way to criticise his answers to questions posed at interview.

2.10     The complainant submitted that over the past three years the interview has become more of a test of general knowledge than of specific knowledge of Tintern Abbey itself.

2.11     The complainant submitted that the respondent referred to his use of a hearing aid in a number of sets of interview notes and that this is evidence of discrimination.

3.         SUMMARY OF THE RESPONDENT’S CASE

3.1       The respondent rejects the allegations of discrimination on the grounds of disability and denies victimization of the complainant.

3.2       The respondent submitted that it recruits tour guides largely by way of a competitive interview process, save where candidates are returning former guides with positive documented job evaluations from their last position as a tour guide with the respondent.

3.3       The respondent submitted that the interview process follows a standard format – interviews last approximately 20 minutes and candidates are assessed against four headings: education and attainments; heritage interest and awareness; relevant work experience; and disposition.

3.4       The respondent submitted that interview boards are tasked with seeking candidates who display a wide range of qualities that would indicate that they would perform well in dealing with the visiting public, have good general knowledge on heritage matters, have a strong presence and a strong positive attitude to customer service.  Interview boards also look for relevant work experience.

3.5       The respondent submitted that in relation to the 2007 recruitment process, three experienced officers of the OPW staff sat on the interview board.  Final selection was made with regard to the skills and qualities displayed by all candidates.  The respondent submitted that the complainant was not considered a suitable candidate and that the complainant was informed accordingly.

3.6       The respondent submitted that at all times it adhered to fair practice in dealing with the complainant and that none of the allegations made are borne out by the evidence submitted by it.

4.         FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1       The issue for decision by me is whether or not the Office of Public Works discriminated against Mr. Roche on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts and whether victimisation as defined in Section 74(2) has taken place.

4.2       Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

4.3       The evidence presented to me that the complainant is a hearing aid user and I am satisfied that the use of a hearing aid comes within the definition of disability outlined in Part 1 of the Employment Equality Acts, 1998 – 2008.  I am also satisfied that the respondent was aware of the complainant’s hearing aid use as this was noted in the 2006 interview notes.  Accordingly, I find that the complainant has established a prima facie case.  Therefore the onus shifts to the respondent to rebut the inference of discrimination raised.

4.4       In considering this claim I note from the submissions to me that the claimant states that the discrimination began in 1998 and is ongoing.  I also note that the recruitment drives are held annually between January and March and the successful candidates take up positions from May onwards.  The complainant outlined a situation where he had applied for the same position with the OPW for a number of years but was unsuccessful on each occasion.  I requested and received supporting documentation in relation to the 2005, 2006 and 2007 recruitment competitions.  On the basis of the documentation submitted to me and the limited seasonal nature of the contract arising from each recruitment competition, I find that the competitions are standalone in nature.  I have therefore considered the individual recruitment competitions in 2006 and 2007.  For completeness and to consider the issue of victimisation, I have considered evidence relating to the recruitment drives of 2003 and 2005 which was presented to me by both parties.  As the recruitment drive for 2008 was undertaken after the closure of the hearing of this matter, I will not be taking it into consideration.

4.5       The complainant submitted that it was inappropriate to make reference to his hearing aid in the interview notes.  In response, the respondent submitted that it was appropriate to comment on the use of a hearing aid.  It argued that as key competencies for a guide are good communication and presentation skills, any issue which may hamper demonstration of that skill is appropriate to mention.  Continual difficulties at the interview may indicate a problem with the applicant’s competence with the communications skill required.  I note from the interview notes that it is common for the interview board to comment on the communication skills of applicants (e.g. one candidate is described as shy, another is described as being soft spoken).  I also note that where the hearing aid is mentioned, the remark goes on to state “but getting new hearing aid”.  The respondent also submitted that once a hearing aid is in working order, then it would not constitute a problem.  I am satisfied that in the context of assessing an applicants communication skills, it is appropriate to mention a faulty hearing aid and that it was necessary to repeat questions.  Therefore I do not find that this amounts to discrimination on the basis of a disability

4.6       The complainant submitted that in one of the sets of interview notes, the respondent remarks that the applicant was argumentative.  The complainant disputes this.  I am satisfied that it is one of the interview board’s functions to assess the demeanour of applicants.  In this context, it is appropriate for the interview board to note the remark and it does not amount to discrimination on the disability ground.

4.7       The complainant submitted that he considered that he had more knowledge of Tintern Abbey than successful applicants.  In a number of the interview notes, it is acknowledged that Mr Roche has a good knowledge of this particular site.  It is marked in the interview notes that Mr Roche’s knowledge is limited to this site and does not extend to other OPW sites.  Accordingly Mr Roche was marked down for this competency.  From reviewing the submissions and the evidence presented to me at hearing, I am satisfied that the interview boards were looking for, inter alia, a good knowledge of a number of sites and the OPW in general.  The marks awarded to Mr Roche vis-à-vis other candidates appear representative of his level of knowledge and the interview board notes indicate that the successful candidates possessed the required attributes.

4.8       The complainant submitted that his farming experience was not considered relevant experience for the job of tour guide.  I note from the interview marks awarded that this appears to be the case.  The role of the interview board is to assess and rate various types of experience from a range of candidates.  In this case, I am satisfied that not considering farming experience as relevant does not amount to discrimination on the disability ground.

4.9       The complainant submitted that the interview board did not rate his level of cash handling experience or people skills very highly.  The interview board’s rating of the complainant’s level of cash handling experience or people skills is largely borne out by the supporting documentation forwarded by the respondent in reference to the successful candidates and accordingly I find that this does not amount to discrimination on the disability ground.

4.10     The respondent submitted that a monitor, from the Respondent’s Senior Management, observed the interview board at for Tintern Abbey in 2003 partly as a result of Mr Roche’s complaint to the OPW regarding the previous season’s recruitment process.  The paperwork was reviewed and the monitor was satisfied that Mr Roche was deemed unsuitable for the position.  A report from the monitor was made available to the Tribunal (and copied to the complainant).

4.11     In response to a request from the Equality Officer, the respondent submitted documentation in relation the recruitment competitions from 2005, 2006 and 2007 for consideration.  This was copied to the complainant.  This documentation comprised anonymised application forms and interview notes for each of the qualified candidates, both successful and unsuccessful.  At the hearing, the respondent stated that Interviewers undergo an interviewing skills course and have to qualify to a satisfactory degree.  The course outlines the general technique to be followed which is a structured model based on the competencies required for the position.  The board work out what questions will demonstrate a particular competency and the marking scheme for the job.  Marks awarded in an interview should stand up to scrutiny and marking details and feed back is given to any applicant who requests it.  The interview training includes an element of sensitivity to the nine grounds outlined in the employment equality legislation.  From reviewing this documentation along with the evidence presented at the hearing, I am satisfied that process was conducted in an open and transparent manner and does not support the complainant assertions that he was discriminated against on the grounds of disability.

4.12     Arising from consideration of the foregoing, I am satisfied that the respondent has rebutted the inference of discrimination raised by the complainant.

4.13     Section 74(2) of the Employment Equality Acts 1998 to 2008 states that “For the purposes of this Part, victimisation occurs where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant

(c) an employee having represented or otherwise supported a complainant

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

4.14     On the issue of victimisation, I sought information from the complainant as to how he had been victimised.  He replied that the interview process had become harder in recent years and that the interview board had gone out of their way to find inadequacies.  The respondent submitted that nothing substantive was advanced regarding the issue of victimisation.  Having reviewed all the evidence submitted to me, I find that the complainant was not subjected to victimisation as outline in the Acts.

5. DECISION

5.1       Having considered all the written and oral evidence presented to me, I find that the respondent has rebutted the inference of discrimination raised and that a case of discriminatory treatment on the basis of the disability ground has not been established.

5.2       On the issue of victimisation, I find that no substantive evidence was offered by the complainant, to substantiate a claim that victimisation, as defined in the Employment Equality Acts, took place.

_________________

Conor Stokes

Equality Officer

08 August 2008