EQUALITY OFFICER'S DECISION NO: DEC-E/2010/130
PARTIES
DESMOND
(REPRESENTED BY THE EQUALITY AUTHORITY)
AND
THOMAS CLARKE & COMPANY
(REPRESENTED BY MARY PHELAN - SOLICITOR)
File No: EE/2007/394
Date of issue: 13 July, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 &16 - disability - discriminatory treatment - access to employment -reasonable accommodation-- prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Donal Desmond that he was discriminated against by Thomas Clarke & Company ("the respondent") on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it withdrew the offer of an interview for employment which had been arranged for 5 March, 2007. The complainant further claims that the respondent failed to provide him with reasonable accommodation to take account of his disability in accordance with section 16 of the Employment Equality Acts, 1998-2007. The respondent rejects the complainant's allegations in their entirety.
2. BACKGROUND
2.1 The complainant, who is deaf, states that he applied for the position of Book-keeper with the respondent in early March, 2007 which was advertised by FÁS. He adds that he subsequently received an e-mail from the respondent asking him to get in contact to arrange an interview. He states that the interview was arranged for Monday 5 March, 2007 but when the respondent became aware he was deaf it withdrew the interview offer. He submits that this alleged treatment constitutes unlawful discrimination of him on the ground of disability contrary to the Acts. The complainant further submits that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2007 to the Equality Tribunal on 30 July, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 13 November, 2009 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 5 March, 2010. A small number of points arose which required further clarification and this gave rise to correspondence between the parties and the Equality Officer until early April, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is deaf. He states that a vacancy for a Book-keeper with the respondent was advertised in the FÁS Offices in February, 2007. The complainant adds that he submitted his CV and letter of application by e-mail to the respondent on 1 March, 2007. He states that he received a replying e-mail from the respondent the next day asking him to contact it with a view to arranging an interview. The complainant states that he replied by e-mail later that day and suggested an interview for the following Monday 5 March, 2007 at 11am. He adds that he then went about organising a sign language interpreter for the interview and states that he asked a friend (Ms. S) to contact Signlink on his behalf and arrange an interpreter. The complainant states that instead of contacting Signlink Ms. S contacted the respondent in error and asked if it (the respondent) would arrange the interpreter. He adds that he was present when Ms. S spoke with the respondent sometime later that afternoon and states she informed him that Mr. Clarke was aggressive and used bad language to her. He adds that she also told him that Mr. Clarke had informed her the job involved a considerable amount of telephone duties and as the complainant was deaf there was no use interviewing him.
3.2 In the course of the Hearing Ms. S gave evidence on this issue. She states that she misunderstood what the complainant had asked her to do and she contacted the respondent in error and spoke with a lady there. Ms. S adds that she asked this lady if the respondent would be booking an interpreter and after a short silence the lady told her she would have Mr. Clarke phone her back. Ms. S states that Mr. Clarke phoned her later that afternoon and he was quite aggressive with her, so much so that "she was unable to get a word in" with him. She adds that Mr. Clarke informed her his business was a very busy accountancy practice and the position involved a lot of telephone work. She states that he did not specifically withdraw the offer of the interview (although the witness changed her evidence on this point later in the Hearing when she stated Mr. Clarke had specifically withdrawn the offer) but she formed the opinion, from his tone of voice in particular, that it was pointless for the complainant to attend the interview. She states that this is what she had communicated to the complainant through sign language by a colleague. The complainant states that on the basis of this information he did not present for interview as he had suggested. The complainant states that the respondent's behaviour constitutes unlawful discrimination of him on grounds of disability contrary to the Employment Equality Acts, 1998 - 2007. In this regard he seeks to rely on the Determination of the Labour Court in A Government Department v An Employee .
3.3 It is submitted on behalf of the complainant that the respondent, once it was aware he was deaf, made a unilateral decision that he was unsuitable for the job because of his disability, despite the relevance of his qualifications. The complainant states that the respondent made no effort at all to explore or discuss what reasonable accommodation might have been available to enable him perform the job. It was submitted on his behalf that the respondent has an obligation to provide reasonable accommodation and in this regard he seeks to rely on a number of determinations of the Labour Court . Finally on this point the complainant refers to the Labour Court Determination in A Technology Company v A Worker . He submits that the circumstances in that case are analogous to his in that the decision of the employer not to recruit him was influenced (in a manner which was more than trivial in nature) by the complainant's disability and it did not examine what reasonable accommodation might be afforded him to perform the tasks associated with the post.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. Mr. Clarke states that he registered a vacancy in his firm with FÁS and agrees that the complainant submitted his application and CV, that he (Mr. Clarke) considered the complainant suitable for interview, that he asked the complainant to contact him with a view to arranging same and that the complainant suggested Monday 5 March, 2007. The respondent states that he was given a message by a member of staff that Ms. S had been looking for him and he returned her call. The respondent states that during this telephone conversation Ms. S advised that the complainant was deaf. He adds that he told Ms. S that given the volume of telephone work and other personal contact which the post entailed, his (Mr. Clarke's) view was that the complainant would face difficulty securing the position. He states that whilst his language in the course of the conversation might be considered inappropriate, he was not aggressive toward her. Mr. Clarke states that at no time during the telephone conversation did he withdraw the offer of the interview. He adds that when the complainant did not attend for interview on 5 March, 2007 he (Mr. Clarke) presumed that the complainant, having heard the amount of telephone work involved, had simply decided the job did not suit and did not pursue his application. Mr. Clarke concludes by stating that he treated the complainant in the same manner as he would have treated any other potential employee in circumstances where he was made aware of certain information not contained on the CV or job application - by pointing out the difficulties he perceived might arise at interview - and therefore submits that he did not treat the complainant less favourably on grounds of disability contrary to the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of the interview process for the position of Book-keeping Assistant in February/March, 2007 and (ii) failed to consider the provision of reasonable accommodation to the complainant in respect of the post in accordance with section 16 of the Employment Equality Acts, 1998 - 2007. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 There is no dispute between the parties as to the events concerning the submission of the complainant's application and the request by Mr. Clarke that the complainant contact him to arrange an interview - which he did by e-mail on 2 March, 2007- suggesting the following Monday (5 March, 2007). In the course of the Hearing Mr. Clarke stated that no reply issued from his Office to the complainant's e-mail of 2 March, 2007. In the circumstances I am satisfied that the respondent had decided, based on the complainant's CV and application, to interview the complainant but arrangements for this interview were never confirmed.
5.4 It is accepted by the respondent that he was informed by Ms. S - in the course of the telephone conversation between them on the afternoon of 2 March, 2007 - that the complainant was deaf. The respondent also accepts he told Ms. S that in his opinion there were difficulties which the complainant might face in securing the position, given the nature of the tasks involved with the post, in particular the significant amount of telephone contact with clients and other parties. He rejects however, any assertion that he withdrew the offer of an interview. In the course of the Hearing Ms. S stated initially that the respondent had not mentioned the interview in the course of this telephone conversation. She later changed her evidence on this point and stated that he (Mr. Clarke) told her he was withdrawing the offer. Mr. Clarke was consistent in his evidence that he had not withdrawn the offer. Having carefully considered the evidence of the both witnesses on this point I prefer that of Mr. Clarke. However, the respondent accepts that subsequent to this telephone conversation it took no action on the matter - either to formally confirm arrangements for the interview at the time suggested by the complainant, withdraw the offer of same or suggest an alternative date. It also accepts that by this time Mr. Clarke was aware of the complainant's disability - information he did not have when he decided (on 2 March, 2007) to interview the complainant. I note that Mr. Clarke accepts he made certain comments to Ms. S during their telephone conversation. I am satisfied that these comments were premised on the fact that the complainant was deaf and in his opinion, would have presented the complainant with considerable difficulty performing the tasks associated with the post. In the circumstances I find that it was reasonable for Ms. S to form the opinion that it would be a futile exercise for the complainant to attend an interview - a view which she communicated to the complainant. Having carefully considered the evidence adduced by the parties on this matter I am satisfied that the actions of the respondent constitute less favourable treatment of the complainant on grounds of disability contrary to the Acts.
5.5 The Employment Equality Acts, 1998 - 2007 transpose, inter alia, EU Council Directive 2000/78/EC into Irish law. Article 2 of that Directive provides that there shall be no discrimination whatsoever on the ground of disability. It is well settled that in interpreting domestic legislation this Tribunal must do so in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive . In A Technology Company v A Worker the Labour Court set out what it - and consequently this Tribunal - should address in assessing that there was no discrimination whatsoever by a respondent. It stated that it "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 than 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.". The Court added, in adopting the approach considered by the UK Court of Appeal in Wong v Igen Ltd & Others 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.". In light of my comments in this and the preceding paragraph I find that the respondent discriminated against the complainant on grounds of disability in respect of the selection process for the vacancy for Book-keeper in February/March, 2007.
5.6 The complainant also contends that the respondent failed to examine his application for the position in light of the requirement to provide reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998 - 2007. Prior to the coming into force of the Equality Act, 2004 on 18 July, 2004 there was no free standing cause of action available to a complainant in relation to an employer's failure to provide reasonable accommodation to an employee with a disability under employment equality legislation. In Ms. Z v A Chain Store the Equality Officer found that Article 5 of the Framework Directive created an independent requirement on an employer to provide reasonable accommodation in a particular case and went on to apply subsection 16(3)(b) of the Acts accordingly. This approach was endorsed recently by the Labour court in A Company v A Worker . The respondent gave no consideration at all to what accommodation he might afford the complainant to enable him undertake the tasks involved with the post. Consequently, I find that the respondent contravened section 16(3) of the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2008 I issue the following decision. I find that -
(i) the respondent discriminated against the complainant of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts in respect of the interview process for the position of Book-keeping Assistant in February/March, 2007
(ii) the respondent did not comply with the positive duty imposed on it under section 16(3)(b) of the Employment Equality Acts, 1998-2007
6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2008 that the respondent pay to the complainant the sum of €5,000 by way of compensation for the distress suffered and the effects of the discrimination on her. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
_______________________________________
Vivian Jackson
Equality Officer
13 July, 2010