EQUALITY OFFICER'S DECISION NO: DEC-E/2012/039
PARTIES
A JOB APPLICANT
(REPRESENTED BY THE EQUALITY AUTHORITY)
AND
A COMMUNITY EMPLOYMENT GROUP
FILE NO: EE/2009/744
DATE OF ISSUE: 3 April, 2012
Keywords: Disability - Access to Employment - Reasonable Accommodation - Victimisation
1. Dispute
This dispute involves a claim by Mr. W, that he was discriminated against by A Community Employment Group, on grounds of his disability, in terms of section 6 (2)(g) and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 in relation to access to employment and that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts. The complainant also claims that he was victimised contrary to section 74(2) of the Acts
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 6 October, 2009.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of February, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 16th March, 2012.
3. Summary of complainant's case
3.1 The complainant, Mr. W submits that he suffers from chronic fatigue and back pain and has qualified for disability allowance since 1997. Mr. W submits that he is registered with FAS CE schemes back to work programme. The complainant, Mr. W submits that in March 2009, he was notified by FAS of a vacancy for the post of Reception/Information Support Worker with the respondent. Mr. W submitted his CV and covering letter to the respondent. Mr. W submits that he made the respondent fully aware of his condition in his application. Mr. W submits that he received no response to his application and was not called for interview and further submits that this was due to his disability.
3.2 Mr. W submits that he contacted the respondent by phone on 6th April, 2009 to ask when interviews would be held. He submits that the person who took his call told him to contact FAS then hung up on him. Mr. W submits that he contacted the respondent by email after this but did not receive any satisfactory reason as to why he was not called for interview.
3.3 Mr. W submits that the respondent's failure to acknowledge his job application or, to call him for interview is an act of victimisation, as a result of his having made a previous complaint about the respondent to the Tribunal, which he later withdrew.
3.4 The complainant further submits that the respondent is unwilling to provide him with reasonable accommodation in its workplace in terms of section 16 of the Acts.
4. Summary of respondent's case
4.1 The respondent denies that it discriminated against the complainant, whether on grounds of his disability or, at all. The respondent accepts that the complainant is a disabled person for the purpose of Acts.
4.2 The respondent submits that the complainant was not called for interview for the job in question as his application was received after the closing date of 20th of March 2009. The respondent further submits that 6 other applications were also late (details supplied). The respondent submits that 14 eligible applications were received and that these 14 were interviewed (details supplied). The respondent submits that the late applications were not considered.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to access to employment and whether or not, the respondent failed to provide the complainant with reasonable accommodation within the meaning of section 16 of the Acts. Furthermore, I must also consider whether the complainant was victimised contrary to section 74(2) of those Acts. 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 of both parties at the Hearing.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
5.4 Disability Ground
In the present case, it is accepted by both parties that the complainant has a disability within the meaning of section 2 of the Employment Equality Acts. I am also satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts.
5.5 Discriminatory Treatment
5.5.1 The complainant, at the hearing, could not provide the date on which he submitted his job application to the respondent. The job in question was advertised from 12th March, 2009 but with a closing date of 20th March for applications. It is the respondent's evidence that advertisements for such posts would usually run for about 7 days so this one is typical of the length of time given to applicants. It is the complainant's evidence that he was notified by FAS, of the job on 16th March 2009, after which, he submitted his cv and cover letter, to the respondent, by post, but could not say on what date. The cv and cover letter submitted to the Tribunal did not contain any date. Given that Mr. W cannot recall the date on which his application was submitted he cannot prove that his application was on time. I am also bearing in mind the fact that the time between Mr. W being notified of the job and the closing date for applications was only 4 days he did not have very much time to compile and submit an application in order for it to reach the respondent before the closing date. Mr. W's job application was not dated nor did he have any proof of postage of such application.
5.5.2 The respondent, at the hearing, stated that the complainant's application arrived late along with, 6 other applications, and was not considered for this reason. Witness for the respondent Ms. G stated that circa 50 applications had been received on time and that applications received after the closing date of 20th March, 2009 were not even opened let alone considered. Ms. G stated that each of these 50 on-time applications had then to be searched for eligibility after which 14 were eligible. Ms. G added that with such a huge response to each post advertised they do not have the time to look at late applications. Ms. G went on to state that if Mr. W's application had been received on time he would have been called for interview. The respondents upon questioning stated that they did not, however, date stamp any applications upon receipt and so, could not say when Mr. W's application was received other than, that it was after the closing date. Witness for the respondent, Mr. H acknowledged that date stamping of applications received has since been introduced but that it was not common practice at the time in question.
5.5.3 The complainant, at the hearing, stated that he never received an acknowledgement or any response to his job application. The respondent acknowledged that they did not respond to those whose applications were received after the closing date and that these applications were only opened, on this occasion, as a result of a phone call from Mr. W on 6th April, 2009. Mr. W's account of this phone call is that Ms. G told him to contact FAS and hung up on him. Ms. G's account of the phone call is that she had told Mr. W, during this phone call, that she had not received an application from him and that he should contact FAS. Ms. G, at the hearing, produced a diary entry of 6th April which had a written record of her phone conversation with Mr. W. The diary entry detailed that following Mr. W's phone call Ms. G then phoned a member of staff who suggested opening the late applications to check if, Mr. W's application was amongst them, and it was. These late applications complete with envelopes were presented to the hearing.
5.5.4 The respondent, at the hearing, produced documentary evidence that a third of all individuals employed in their CE schemes at the moment are on disability and witness for the respondent, Mr. H indicated that the reason for his involvement with the respondent organisation was due to the fact that he has a son with a disability. The respondents also gave evidence that they had on a number of occasion employed people with disabilities and had put in place measures to accommodate such disabilities in the workplace.
5.5.5 As regards the phone call of 6th April I find the evidence of Ms. G to be more compelling in that she has kept a written record of the phone conversation. In addition, I find that the respondent's evidence regarding employment of individuals with a disability and the fact that one of the categories which CE schemes are designed to facilitate is, those receiving disability allowance, to be compelling enough to rule out the question that a person with the complainant's disability was excluded from interview process due to that disability. In addition, if I am to accept that the respondents did not open the complainant's application due to its arrival after the closing date, then, they would have been unaware of the fact that the application belonged to the complainant or that the applicant had a disability. The respondents, at the hearing, did acknowledge that their failure to respond to, or to open, late applications was not perfect but, indicated that with such volumes of applications they do not have the time to consider, or to reply to, those submitted after closing dates. Having considered all of the evidence adduced by the parties on this point, I prefer, on balance, the evidence of the respondents and am satisfied that the respondent's failure to call Mr. W for interview was unrelated to his disability. Based on the totality of the evidence given in this matter, I am satisfied that the respondent did not discriminate against the complainant when it failed to call him for interview.
5.6 Reasonable accommodation
5.6.1 The next matter I have to consider is whether, the respondent failed to provide the complainant with reasonable accommodation, in accordance with, section 16 of the Acts. The complainant submits that he has been discriminated against, by the Respondent, on grounds of his disability and that the respondent is unwilling to reasonably accommodate his disability, in its workplace. As regards the allegation, by the complainant, that the respondent is unwilling to reasonably accommodate his disability in the workplace, no evidence was presented, at the hearing, to substantiate this allegation. Accordingly, the complainant has not established a prima facie case in relation to, the failure to provide reasonable accommodation. As I am satisfied that the respondents failure to call the complainant for interview, was unrelated to his disability and was due to the fact that his application was received after the closing date and, as the complainant has failed to substantiate the allegation that the respondent was unwilling to provide him with reasonable accommodation, this element of the complaint fails. Accordingly, the respondent did not discriminate against the complainant, on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
5.7 Victimisation
5.7.1 The next matter for consideration is victimisation. Section 74(2) provides that:
(2) For the purposes of this Part victimisation occurs where 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.
5.7.2 The complainant, Mr. W has submitted that the actions of the respondent, in failing to call him for an interview amount to victimisation. Mr. W submits that he had previously lodged a complaint with the Tribunal against the respondent. Mr. W further submits that the failure to call him for interview was a reaction to his previous complaint of discrimination and thus, constitutes victimisation. As I am satisfied, from the totality of the evidence adduced above, that the respondents failure to call Mr. W for interview was due to the fact that his application was received after the closing date and that the complainants identity was not known when, the respondent failed to call him for interview I cannot accept that the respondent's actions were a reaction to a previous complaint. Thus, even though an earlier complaint was made by Mr. W, against the respondent, to the Tribunal, the conclusions reached above indicate that that Mr. W's identity was not known, when the respondent failed to call him for interview, as his application remained unopened. Thus, in accepting that Mr. W's application was received after the closing date and that all late applications were treated the same, coupled with the fact that the complainants identity would not have been known to the respondent, at the time in question, the claim of victimisation must fail. In light of this, and the foregoing evidence on this matter, I am satisfied that the respondent did not victimise the complainant, on the disability ground, in terms of section 74 of the Acts.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the disability, grounds pursuant to section 6 of the Acts, in relation to access to employment and contrary to section 8 of the Acts
(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
(iii) the respondent did not victimise the complainant on the disability ground in terms of section 74 of the Acts.
______________________
Orla Jones
Equality Officer
3 April, 2012