DEC-E2008-068 - Full Case Report

Decision in accordance with the

Employment Equality Acts 1998-2008

DEC – E2008 – 068

A Complainant

(Represented by Thomas Coughlan Solicitors)

 V

 An Employer

(Represented by Eoin Clifford BL on instruction from Martin Harvey Solicitors)

1.    Background

The complainant referred a claim to the Director of the Equality Tribunal, received on 30^th March 2006, under the Employment Equality Acts 1998-2004 on the disability ground.  In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, on 18^th April 2008 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.  Following receipt of submissions a hearing was held on 9^th July 2008.  Information submitted following the hearing was received on 15^th September 2008 from the respondent.  This was copied to the complainant who was afforded an opportunity to respond.

2.     Summary of the Complainant’s case

In January 2006 the complainant saw an advertisement inviting applications for the position of Graphic Designer (Part-Time) and he lodged an application on 1^st February 2006.  He saw a call coming in on his phone on 7^th February and as he is deaf he texted the caller asking them to text him with the content of their message.  This they did, indicating that he was requested to attend for interview the next day with the respondent company at 11:30am.  The complainant indicated that he would attend the interview and contacted the Cork Deaf Society, Mr. P, attempting to organize an interpreter for the interview.  This did not prove possible and Mr. P called the respondent to discuss matters.  It became apparent that the respondent intended to hold the interviews on the following day only.  As an interpreter was not available Mr. P indicated that the complainant would not attend for interview.  Subsequently, the complainant suggested to Mr. P that perhaps the interview could take place with the aid of a computer.  This was put to the respondent who replied that it would not be possible as the interviewer was not computer literate.  The interview slot originally assigned to the complainant was reassigned to another applicant.  While Mr. P felt that things were still open at that stage he was also clear that the complainant had missed the interviews. 

3.     Summary of the Respondent’s Case

Mr. A was the interviewer for the respondent company.  At the relevant time of year he is normally busy attending trade shows in Asia.  The interview date was selected as he would be in Ireland on that date.  He selected a number of CVs that looked promising and asked his brother Mr. B to make the arrangements for the interviews.  The vacancy had arisen as a result of talks with another business when they decided to create the post and share the cost between the businesses.  At that time neither Mr. A or Mr. B were capable of undertaking an interview by computer.  The complainant was known to Mr. B as a result of a delivery to the complainant’s home some years previously.  While Mr. P indicated, at the hearing, that in his opinion the matter was somehow still open Mr. B said that they made it clear that the interviews were only available on one day.  The respondent argued that as the complainant was known to Mr. B and he was still offered an interview there can be no suggestion that he was denied an interview because he was deaf.  The claim is therefore misconceived.  If however, the claim is well founded any breach of the Act can not be considered a serious matter given the circumstances because this is a small company and the matter is trivial in the extreme.  The matter concerning the use of a keyboard/computer is something the Tribunal need not be concerned with.  The interviews had to be held that day and it is difficult to identify other special treatments that might have been offered in terms of Section 16(3) dealing with reasonable accommodation.

4.     Conclusions of the Equality Officer

It is agreed that the complainant applied to the respondent for the post, was called for interview the day before they were due to be held, and that his attendance at the interview was pointless without the aid of a sign language interpreter.  It is also agreed that the respondent was not prepared to defer the interview and that they were unable to conduct the interview with the aid of computers.  What has to be decided is whether or not the complainant’s disability impacted in any way on the interview process and if so, whether

·         This amounts to discrimination on the disability ground in terms of Sections 6, and 8 of the Act,

·         The respondent was required by statute to provide reasonable accommodation,

·         Reasonable accommodation was provided.

In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.

Section 85A of the Employment Equality Acts provides as follows:

Where in any proceedings facts are established by or on behalf of the 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 in the first instance to establish facts from which it can be inferred that he was treated less favourably because of his disability.  If this is achieved the burden shifts to the respondent to rebut the presumption of discrimination raised.

Section 8 states :

“8.-(1) In relation to-

(a)  access to employment, ……..

an employer shall not discriminate against an employee or prospective employee……..

…

…

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee-

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered………

The respondent made arrangements for the interviews to take place on one assigned day.  All applicants selected for interview were required to attend for interview on that day.  The complainant was unable to attend for the interview as no sign language interpreter was available.  Attendance without an interpreter would have been unproductive and the interview could not have proceeded.  The respondent applied the same requirement to all interviewees, that is all interviewees were required to attend on the same day at very short notice.  However, the complainant was in a different situation in comparison to the other interviewees as he required an interpreter to proceed with his interview.  This requirement is directly linked to the complainant’s disability The Labour Court has addressed this issue as follows:

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-279/93 Finanzamt Koln-Altstadt v Schumacker [1995] E.C.R. I-225, and Campbell Catering Ltd. V Aderoke Rasaq [2004] 15 ELR 310). [1]

The matter of providing for a delay in an interview process for a person with a disability was also addressed in the same Labour Court Determination as follows:

“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.”

In relation to the length of deferment the Court stated :

“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 a time frome in which the post must be filled.  Candidates with a disability are entitled to no more than that.”

This Determination actually referenced Section 8(8) in relation to a person who was already an employee but I am satisfied that it applies equally to Section 8(5) and in that regard I note the reference to “Candidates for employment or promotion” in the extract above.

The Determination goes on to say that an employer has not fulfilled its duty “by offering a disabled employee an opportunity that is illusory in the circumstances of their disability when a reasonable alternative would be of real utility.”  I am satisfied that this also applies to a prospective employee.

I am satisfied that the respondent’s refusal constitutes less favourable treatment when a reasonable deferral would have allowed the complainant to take part in the interview and have a real opportunity to access the employment.  This establishes a presumption of discrimination in accordance with Section 85A.  I find that the complainant has established a prima facie case of discrimination in terms of Sections 6 and 8(5)(a) on the disability ground.

The respondent was asked at the hearing to produce evidence in support of the contention that the interviewer was out of the country or otherwise unavailable during the period surrounding the interview date.  As nothing was received a letter issued to the respondent’t representative on 22^nd July clarifying the information required.  On 8^th September a reminder was issued.  A response was received on 15^th September 2008 in which it was indicated that the respondent would endeavor to obtain evidence from Aer Lingus but this has not been received.  Neither has a contemporaneous diary or any other evidence been presented.  In addition, no evidence has been presented in support of the assertion that any delay in the appointment of a person to the post was unacceptable.  Therefore, the respondent has presented no supporting evidence to the assertion that the interviews had to be completed on the one day, notice having been given to interviewees the previous day.  With regard to such evidence the Labour Court stated:

“Firstly, since the facts 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 (see Barton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258).” [2]

In the absence of any such evidence I find that the respondent has failed to rebut the prima facie case of discrimination.

The deferral of the interview, as discussed above, required the employer to passively respond to the situation and do nothing other than allow the complainant time to procure an interpreter.  The interview could then have been conducted in the normal way.  Caselaw suggests, as above, that this constitutes less favourable treatment in terms of Sections 6 and 8.  The use of a computer for communication at an interview, however, would have required an active response from the respondent in that they would have had to conduct the interview in a different way.  The requirement to provide treatment that goes beyond what is provided to the majority of people, in order to bring people with disabilities to the same starting line, is normally addressed in terms of Section 16 (3). 

Section 16 (as amended) provides that:

"(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."

The Equality Act 2004 amended the Employment Equality Act 1998 to implement, inter alia, Directive 2000/78, otherwise known as the Framework Directive. [3]  Article 5 of the Framework Directive provides as follows:

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided.  This means that employers shall 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, or to undergo training, unless such measures would impose a disproportionate burden on the employer.  This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

The interpretation of national law in the light of EU law was addressed by Hamilton CJ in Nathan v Bailey Gibson [4] as follows:

"It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result envisaged by the directive."

………

"This Court is in the same position and under the same obligations as any other national court to interpret the provisions of s.29c) and s.3 of the Act, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the directive.....

The European Court of Justice has also addressed the matter in Von Colson and Kamann v Land Nordrhein-Westfalen[5]

"However the member states' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts.  It follows, that in applying the national law and in particular the provisions of a national law specifically introduced  in order to implement Directive no 76/207 national courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the results referred to in the third paragraph of Article 189."

As the 2004 amendment of the Act was designed to implement, inter alia, the Framework Directive, it should be interpreted in a manner to achieve the result envisaged by the Directive.  I am satisfied that this Article creates an independent requirement to provide reasonable accommodation where it is needed in a particular case. In order to give unfettered effect to Article 5 of the Directive subsection 16(3)(b) of the Acts must be considered to create an independent cause of action without the need for a respondent to rely on the defence in subsection 16(1).  I shall apply subsection 16(3)(b) of the Act accordingly.

Section 16(3) has been addressed at length by the Labour Court for example in such cases as An Employer v a Worker (Mr. O), EDA0419, A Government Department and a Worker, EDA0612, and more recently Bus Eireann and Mr. C, EDA0811.  However, the cases cited above relate to incidents occurring before the amendment of the Act.

Section 16, as amended, was considered by the Equality Officer in decision DEC-E2006-058.  In that case a prospective employee whose vision was impaired attended for interview and asked to do the technical test, which formed an intrinsic part of the selection process, electronically.  He was not afforded that opportunity.  He also claimed that the interview process was tainted by discrimination.  The Equality Officer was not satisfied that the process was so tainted and that part of the claim failed.  However, the Equality Officer found that the complainant was not afforded the opportunity to take 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 Act places an obligation on the employer to provide reasonable accommodation to prospective employees at recruitment stage unless it gives rise to a disproportionate burden – and it should have made further enquiries as to the complainant’s needs in that regard.

……

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.”

This decision was appealed to the Labour Court but not in respect of reasonable accommodation.  I adopt the Equality Officer’s reasoning in my approach to the instant case.

The complainant initially accepted the interview time allocated to him.  He later sought, through his contact, a postponement to facilitate the procurement of the services of an interpreter.  This was refused.  He then sought, through his contact, permission to do the interview with the aid of a computer.  This was also refused.  I am satisfied that the respondent did not investigate what this latter request might have entailed or required and refused it out of hand as the interviewer was not computer literate.  I find that this was a failure to provide reasonable accommodation in terms of Section 16(3)(b). 

I am also satisfied that the respondent cannot rely on the argument that such a facility would have created a disproportionate burden for them.  The computer communication could have been as basic or elaborate as they chose, beginning with using a simple MS Word document to type questions and answers or choosing more elaborate communications software.  Neither could ensuring the availability of a person with typing skills for the duration of the interview be taken as creating a disproportionate burden on the respondent.  I am satisfied that the respondent cannot rely on the defence in subsection 16(3)(c).

Decision DEC-E2008-068

Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.  I find that the complainant was discriminated against in terms of sections 6 and 8(5) of the Acts on the disability ground, when a deferral of his interview was refused.  I find that the respondent failed to provide reasonable accommodation in terms of Section 16(3)(b) to the complainant when they failed to consider or provide the opportunity to undertake the interview with the aid of a computer.

Redress

In accordance with Section 82 (1)(c) I hereby order the respondent to pay the complainant €8000 for the effects of the discrimination.

Bernadette Treanor

Equality Officer

30^th December 2008