EQUALITY OFFICER DECISION NO: DEC-E/2009/096
PARTIES
MR. A
(REPRESENTED BY MS. CATHERINE BURKE-KENNEDY BL
INSTRUCTED BY GIBBONS ASSOCIATES - SOLICITORS)
AND
A HEALTH SECTOR EMPLOYER
(REPRESENTED BY MR. CONOR POWER BL
INSTRUCTED BY MCCANN FITZGERALD - SOLICITORS)
File No: EE/2006/324
Date of issue:23 October, 2009
Headnotes: Employment Equality Acts, 1998 and 2004, section 6 and 8 - discriminatory treatment - disability -promotion - appointment - burden of proof
1. DISPUTE
This dispute involves a claim by Mr. A that he was discriminated against by the respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts as regards the manner in which he was treated in the course of the selection process for appointment to the post of Community Welfare Officer between January and March 2006.
2. BACKGROUND
2.1 The complainant attended at interview for the post of Community Welfare Officer with the respondent in March, 2006. He asserts that the respondent discriminated against him on grounds of disability contrary to the Acts in the manner in which it organised and conducted the selection process, from advertisement of the post to the interview itself. The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the complainant has failed to demonstrate that he was suffering from a disability at the time of the alleged discriminatory treatment of him.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 12 September, 2006. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 15 January, 2009, the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 23 March, 2009. A number of issues arose at the Hearing will required clarification and gave rise to correspondence between the parties and the Equality Officer. This process concluded in late July, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he suffers from cardiac oedema and anxiety/depression stemming from Obsessive Compulsive disorder (OCD) and that he did so at the time of the selection process in early 2006. He adds that he was absent from work at that time and had been so since July, 2004. He contends that the respondent was aware of this as medical certificates were furnished to it and submits that the condition of OCD constitutes a disability for the purposes of the Acts.
3.2 The complainant states that it is policy in the respondent organisation to notify employees on sick leave of vacancies arising. He adds that the respondent did not notify him of the vacancy for Community Welfare Officer which circulated to other staff on 6 January, 2006. The complainant states that he became aware of the vacancy through a telephone conversation with a colleague and he then expressed an interest in the post. He adds that he was informed by letter of the time and date of the interview and attended as instructed. He adds that it was only at the beginning of the interview that he was informed that it was a "structured competency based interview" process with the candidate required to demonstrate experience across four specific criteria. The complainant states that he was disadvantaged by this as he was unable to prepare fully for the interview and he did not therefore perform to the best of his ability. He asserts that other candidates were informed of the interview format and the failure of the respondent to provide him with this information, because he was absent on sick leave, constitutes less favourable treatment of him on grounds of disability contrary to the Acts.
3.3 The complainant states that he attended for interview as instructed and was interviewed by Mr. X and Ms. Y. He adds that in the course of the interview Mr. X, who had previously been the complainant's Line Manager and was therefore aware of his (the complainant's) condition, asked him how his health was. The complainant states that the comment took him by surprise and made him uncomfortable for the remainder of the interview. He adds that he would have been far more comfortable being interviewed by someone he didn't know and asserts that the comment must have influenced the decision making process of the Interview Panel. The complainant submits that this behaviour constitutes discrimination of him on grounds of disability contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. In the first instance it asserts that the complainant has failed to demonstrate that he suffered from a disability in terms of section 2 of the Employment Equality Acts, 1998 and 2004 at the relevant time. It states that medical certificates submitted by him from the beginning of his absence indicate "anxiety/depression" or "depression/severe anxiety" as the reasons for same. It adds that the first time OCD appears on the medical certificates is from 31 October, 2006 onward - which postdates the selection process.
4.2 It states that it advertised the vacancy at issue in early January, 2006. It states that it is the policy and practice that Line Managers notify staff in their area of responsibility who are absent on a long-term basis of vacancies as they arise. The respondent adds that in this case the complainant had transferred to his current post whilst absent on sick leave and had no therefore met his Line Manager. It states that in the circumstances the complainant's Line Manager inadvertently overlooked informing the complainant of the vacancy and the complainant subsequently became aware of it through a colleague. The respondent adds that the complainant subsequently submitted an application which was processed in the same manner as all other applications. It states that he was notified in writing (on 17 February, 2006) of the arrangements for the interview - as well as the identities of the Interview Panel - and given the name of a contact person if he had any queries. This was four weeks before his interview and the complainant raised no issues with the respondent during this time. The respondent states that this was the process followed in respect of all candidates and submits that it cannot therefore constitute unlawful discrimination of the complainant contrary to the Acts.
4.3 The respondent states that the interview was a "competency based interview" in accordance with the standard practice for posts of that level and nature. It adds that as this was the standard type interview process it was presumed candidates, including the complainant, were aware of this and would be in a position to prepare accordingly. The respondent denies the assertion that other candidates received information which the complainant did not. It states that the competencies were decided by the Interview Panel about a week before the first series of interviews (the interview took place over two days - 7 March and 14 March, 2006) and no candidate was given this information in advance. The respondent adds that both members of the Interview Panel were (i) familiar with the area where the vacancy was, (ii) trained in competency interview techniques and (iii) were experienced interviewers. It rejects any assertion by the complainant that the Interview Panel and the interview process itself were biased against the complainant.
4.4 The respondent (Mr. X) confirms that he had previously been the complainant's Line Manager and he was aware the complainant was absent from work long-term. He accepts that he enquired about the complainant's health but states that he did so in a general manner and in advance of the interview commencing. He adds that having known the complainant personally and professionally and not having spoken with him for some time, he felt it would be impolite not to ask such a question of a colleague. The respondent (Mr. X) states the complainant did not indicate to him that the comment was unwelcome and further states that the complainant did not appear to be any more uncomfortable than other candidates were during the interview. The respondent states that notes of the interview (taken by the second member of the Interview Panel) make no reference to the comment. It rejects the assertion that the comment influenced, in any manner whatsoever, the deliberations of the Interview Panel on the complainant's performance at interview. The respondent seeks to distinguish this scenario from that contained in Rondell v University of Dublin, Trinity College where the Equality Officer held that the conduct of a member of the Interview Panel and the content of a remark made by that person had an adverse impact on the complainant's performance at interview and was therefore discriminatory. It submits that the comment made by Mr. X cannot be considered as discriminatory in that context rather it was a pre-interview expression of friendly concern for the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not (i) the complainant had a disability in terms of section 2 of the Employment Equality Acts, 1998 and 2004 at the relevant time and (ii) the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts in respect of the manner in which it conducted the selection process for appointment to the post of Community Welfare Officer in early 2006. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 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 on the grounds specified. 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. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 Before dealing with the substantive aspects of this complaint I must address the question of whether or not the complainant suffered from a disability at the relevant time. The complainant states that he suffers from OCD and that he did so at that time. However, the medical certificates submitted by him in at the time made no reference to this disorder but instead indicated that his absence was due to anxiety and/or depression. The Tribunal was furnished with a report by Dr. Cian Denihan, Consultant Psychiatrist, which inter alia, contains a reference from the World Health Organisation's International Classification of Mental and Behavioural Disorders on OCD which states that there is a close relationship between obsessional symptoms and depression. It goes on to say that individuals with OCD often display depressive symptoms and consequently differentiating between OCD and depressive disorder may be difficult because the symptoms so frequently occur together. It is clear that at the relevant time (January-March, 2006) the respondent was on notice that the complainant was suffering from depression or from some form of anxiety or depressive disorder. In a decision earlier this year the Labour Court, in a comprehensive examination of whether or not a depressive illness conforms with the definition of disability under the Acts , held that a depressive illness was a condition encompassed by the definition of disability provided at section 2 of the Acts. I am therefore satisfied that at the relevant time the complainant was suffering from a condition covered by the Acts and the respondent was on notice of same.
5.4 The first element of the complainant's case focuses on the manner in which he became aware of the vacancy. It is common case that he did not receive individual notification of same from the respondent and instead it came to his notice via a colleague. The respondent states that its policy and practice as regards notifying staff on long-term absence of vacancies etc. is that Line Managers are expected to communicate that information to staff for whom they have line responsibility. It adds that this did not occur in this case due to an oversight - the complainant had transferred to the area whilst absent, had never met the Line Manager and hence the Line Manager overlooked him. I note the complainant accepted in the course of the Hearing that he had transferred to a new area during his absence and that he had never met his new Line Manager. In the circumstances, I consider it at plausible that the Line Manager in question merely overlooked the complainant when s/he failed to notify him of the vacancy. I also note that the complainant did not suffer any actual disadvantage as he subsequently submitted his application for the post and was interviewed. I am therefore satisfied that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.5 The next element of the complainant's claim concerns his assertion that he was disadvantaged by the respondent in it failing to advise him of the format of the interview process prior to him attending for interview on 14 March, 2006. The respondent rejected this assertion stating that the complainant received written notification of his interview as the same time as other candidates, that this letter contained the same type of information as other candidates and that the complainant made no contact with the contact person advised by the respondent prior to interview. In the course of the Hearing evidence was given by the respondent's HR representative and Mr. X that the four criteria over which candidates were assessed at interview were not decided until the week prior to the first batch of interviews - which were held on 7 March, 2006 and that this information was not communicated to any of the candidates. In the course of the Hearing the complainant was asked by Counsel for the respondent to identify the information he asserted was received by the other candidates and not by him and he was unable to do so, stating that he had assumed the interview would be post specific and not competency based. Having evaluated all of the evidence on this issue I am satisfied that the respondent furnished the complainant with the same information it had provided to other candidates. The fact is that the complainant failed to clarify with the respondent what the format of the interview would be, in circumstances where he was out of the workplace for some considerable time and was advised of contact details for a staff member who could answer any queries he might have on the matter, the same as other candidates. Instead he assumed the interview would focus of the content of the post to be filled. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination contrary to the Acts and this element of his complaint cannot therefore succeed.
5.6 The final element of the complainant's claim concerns a comment made to him by Mr. X, one of the interviewers. It is accepted by Mr. X that he enquired of the complainant as to his health. He states that he did so as he knew the complainant for a number of years both personally and professionally and believed it would be impolite for him not to enquire after the complainant's health. There is conflict between the parties as to when the comment was made. The complainant states it was toward the end of the interview and that he was uncomfortable thereafter. Mr. X stated that the comment was before the interview commenced. The Tribunal was furnished with a copy of the contemporaneous interview notes and there is no reference to the comment at issue or any response by the complainant. In the course of the Hearing evidence was given by Ms. Y (the second interviewer and the person who recorded the responses of the complainant when Mr. X questioned him) that she did not recall the comment and that she would have recorded it had it been made. She also stated that she noticed no sudden change in the complainant's demeanour during the course of the interview. This was confirmed by Mr. X in the course of his evidence (which was given when Ms. Y was not present). In the course of the Hearing Mr. X stated that given one of his previous jobs with the respondent, he knew every one of the candidates who attended for interview and that his role was to set them at ease. I have carefully examined all of evidence submitted by the parties on this matter and I find it more likely that Mr. X made the comment to the complainant at the outset and not during the course of the interview. I am also satisfied that there was no discriminatory motives behind the comment - that it was a genuine attempt to set the complainant at ease - and that it was not a factor taken into account by the Interview Panel in the final analysis of the complainant's performance at interview. In reaching my conclusion on this point I am mindful that the complainant was empanelled following interview (but not appointed as there was only one vacancy) and the complainant stated at the Hearing that he was not asserting he should have been awarded a higher place on the panel. However, it must be said that the comment was ill-advised in the circumstances, particularly as Mr. X was an experienced and trained interviewer. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination in respect of this aspect of his complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the complainant has failed to establish a prima facie case of discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts and complaint therefore fails.
_______________________________
Vivian Jackson
Equality Officer
23 October, 2009