THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 - 188
PARTIES
Mr Kevin Stanley
and
Irish Wheelchair Association
(represented by Tony Kerr, B.L., instructed by Doyle solicitors)
File Reference: EE/2010/049
Date of Issue: 20th December, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(g), Disability Ground - Section 16(3), reasonable accommodation - disproportionate burden
1. Dispute
1.1. This case concerns a complaint by Mr. Kevin Stanley (hereinafter referred to as "the complainant") that he was discriminated against by the Irish Wheelchair Association (hereinafter referred to as "the respondent") on the ground of disability, contrary to section 6(2)(g) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to a failure to provide reasonable accommodation, contrary to Section 16(3) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 28th January, 2010, alleging that the respondent had discriminated against him on the ground of disability.
2.2. Written submissions were received from both parties. On 15th May, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 6th September, 2012. Further information was sought from the parties and final correspondence in this respect was received on 5th October, 2012.
3. Summary of the Complainant's case
3.1. The complainant stated that he was deaf. He stated that he applied to the respondent for a temporary post as a National Development Officer with the Irish Wheelchair Association (IWA). He stated that he received an e-mail on the 9th October, 2009 inviting him to attend for interview on the following 14th October. He stated that he replied to say that he would require an Irish sign language (ISL) interpreter for the interview but that he would seek to arrange the interpreter himself. He said that he informed the respondent later that day that he was having difficulty in arranging an interpreter as there were no suitable interpreters available on that date. He referred to an e-mail with a time of 15:52 to that effect but also thought he had sent one earlier that day. He gave an account of his further communication with the respondent in that context, which was by e-mail only and copies of which were provided to the Tribunal.
3.2. The complainant stated that the respondent failed to provide him with reasonable accommodation by refusing his request to have the interview rearranged for another date. He said that he had similar difficulties in arranging interviews with other prospective employers but they had all been able to change the time and/or date of the interview to accommodate him. He said that it was impossible for him to attend the interview without an ISL interpreter. He said that the respondent had failed in its duty to provide him with reasonable accommodation in that context. He stated that it was debatable whether it was his responsibility to arrange an ISL interpreter. Nonetheless, he said that he would normally do so himself given the failings in the Irish model for access to sign language interpretation as opposed to the models in other countries.
3.3. The complainant denied that rearranging the interview would impose a disproportionate burden on the respondent. He said that the bottom line is that there was no interpreter available and he could not access the interview in that context. He said that he did ask them to change the date and did not accept that IWA was unable to do so. He gave a number of examples of options that were open to the respondent to facilitate his attendance at the interview. In particular, he said he could have been interviewed at a different time that day as he said that there is always a good chance to get an interpreter late in the day, but it is difficult to arrange during the day. He said that he did not mention most of these to the respondent as he did not think he needed to and he did not think he should have to do all the work in suggesting solutions in any event. He added that he thought IWA would know better.
3.4. The complainant also pointed out that Ms A, the respondent's Director who was on the interview board, was not taking her leave until the 16th October. In any event, he saw no reason why the respondent could not have interviewed him after Ms A came back from her holidays. He stated that it was not right of the IWA to compare his case to that of A Complainant -v- An Employer1. He said that, while that person had one days notice and he had five, it normally requires two to three weeks notice to arrange an ISL interpreter.
3.5. In short, the complainant said that rearranging the date to allow him bring an interpreter was a minor inconvenience and not a disproportionate burden for the respondent. He said that the bottom line is that he is deaf and it is not his fault that he required an ISL interpreter. He said that the respondent failed to provide him with reasonable accommodation in that context.
4. Summary of the Respondent's case
4.1. The respondent outlined the circumstances that led to the relevant vacancy arising. It said that an advertisement was placed on 23rd September in that context, on the same day it became aware of the vacancy. It said that it wanted to ensure a seamless transition and so wished to have the new person start before the existing person left which meant a start date of 26th October to allow for a handover. It said that this was the reason why it needed to fill the vacancy quickly and, in particular, why the interviews had to take place before Ms A, who was going to be the new person's direct supervisor, went on Annual Leave.
4.2. The respondent said that Ms A had arranged leave in that respect to start on 16th October and her flights for her holiday had been booked a week before the respondent became aware that the vacancy would arise. It said that seven applications were received for the post and three were shortlisted, including the complainant. It said that the interview board consisted of Ms A and another person. Ms A gave evidence to the hearing as to the reasons why she considered it vital that she carry out the interviews, in particular given the nature of the working relationship that would exist between her and the successful candidate. The respondent added that it was absolutely necessary to fill the position prior to the existing holder of the post moving on and that, in that respect, the person who was ultimately successful in the competition commenced on 27th September.
4.3. The respondent said that it had made every effort to secure an interpreter for the complainant and had made every effort to facilitate the complainant in whatever way it could. It stated that to require it to rearrange the interview date would impose a disproportionate burden on it as it would have to either bring Ms A back from her holidays or get her to wait for another two weeks. It stated that it did not look at changing the date to the 13th or 15th October as it was impractical to do so. In particular in this respect, it stated that it would be unfair and unreasonable to ask the other two people called for interview to change the date of their interview. Furthermore, it said that the complainant had not mentioned to it about getting ISL interpreters for the 13th or 15th October, or indeed for another time on the 14th October, nor did he give it any indication that ISL interpreters would be available then.
4.4. The respondent distinguished the circumstances of the present case from those of a similar decision of the Equality Tribunal2 in which the Equality Officer found in favour of the complainant. It stated, in particular, that, in the present case, it was able to provide evidence that Ms A would be out of the country at the time and that it had made every effort to assist the complainant in obtaining an ISL interpreter. It said that, in the aforementioned decision, the Tribunal found a failure to provide reasonable accommodation as, in particular, there was no evidence of the person involved being out of the country. It said that there was such evidence in the present case and Ms A had given that evidence. It said that she had booked and paid for flights before the ad was placed. It added that the Labour Court case quoted in that decision does not oblige a respondent to provide ISL interpretation.
4.5. In summary, the respondent said that it regretted that the complainant felt he had been discriminated against and assured him that it made every effort to provide him with an ISL interpreter but it was not possible to do so. It said that was not its fault either. It said that it is obliged only to provide reasonable accommodation. It said that nowhere in Labour Court or Equality Tribunal decisions is an employer under an absolute obligation to provide ISL interpretation. Neither did it think that it was obliged to defer the filling of the job indefinitely to accommodate disabled candidates. It said that it was evident that it was a major problem to reschedule the interview and certainly to reschedule it for a subsequent date. In short, the respondent said that it had complied with its obligations under s.16 of the Acts.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they 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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.' 3
5.2. Section 6(1) of the Acts 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..." Section 6(2)(c) of the Acts defines the discriminatory ground of disability as follows - "that one is a person with a disability and the other either is not or is a person with a different disability."
5.3. Section 16(3) of the Acts states, inter alia, that "(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.....(4) In subsection (3)... 'appropriate measures', in relation to a person with a disability...does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself
5.4. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation into the matter. The single issue for me to decide in this case is whether the respondent failed to provide the complainant with reasonable accommodation in the context of the present complaint. This involves answering one simple question: would requiring the respondent to reschedule the complainant's interview to facilitate the attendance of an ISL interpreter have imposed a disproportionate burden on it? In all the circumstances of the present case, I am satisfied that the answer to that question is no.
5.5. In that respect, I note that Ms A was at work on both the 13th October and 15th October. Neither she nor the respondent as a whole were able to provide any satisfactory explanation as to why the complainant's interview could not have been held on either or both of those dates. I do not accept that it was not feasible to do so in that context, particularly as there was no reason why the interviews for the other candidates would have to be rearranged in order to do so.
5.6. Furthermore, there is no reason why the arrangements for the 14th October could not have been changed, either by facilitating the complainant with an interview either before or after all the other candidates were interviewed, or by switching interview 'slots' between candidates as suggested by the complainant. The latter proposal might have caused some inconvenience to the candidates concerned, but I do not consider such inconvenience would amount to a disproportionate burden on the respondent. While there was no guarantee an ISL interpreter would have been available at any of the dates and times mentioned in this paragraph and/or the previous paragraph, it seems highly unlikely that they would not have been available at some point during the three dates in question. In any event, the respondent was not even prepared to consider the matter.
5.7. Furthermore, that the complainant did not communicate all his suggestions to the respondent is regrettable, but not fatal to his case, particularly as he did make some suggested solutions to it. It is also well established in this Tribunal that there is a duty on a prospective employer to consult with a disabled candidate in order to establish whether they are fully competent and capable of performing their duties.4 That applies equally to the present situation to the extent that the respondent was under an obligation to at least consult with the complainant with a view to facilitating his attendance at the interview in question, particularly in the context that, had it done so, I am satisfied that a solution would have readily been found.
5.8. In all the circumstances of the present case, then, the complainant has established a prima facie case that the respondent failed to provide him with reasonable accommodation in the context of this complaint.
5.9. The respondent presented a number of arguments in rebuttal. Firstly, it argued that arranging and paying for a sign language interpreter is a "facility that (the complainant) might ordinarily or reasonably provide for himself" and that it could not be held accountable for his inability to be able to provide a sign language interpreter on the day in question in that context. However, I am satisfied that the complainant would have been able to provide the facility himself, and was prepared to do so, but for the respondent's obduracy in refusing to engage in a reasonable discussion about the matter with him.
5.10. The respondent also claimed that Ms A would have had to change her leave plans and/or it would have had to leave the post vacant in order to facilitate the complainant's attendance at the interview. However, this would only have been the case had it been necessary to postpone the interview until after Ms A returned from her leave. I am satisfied that it was not necessary to do so. In that context, this argument is irrelevant.
5.11. Finally, the respondent referred to the case of A Complainant -v- An Employer5 and distinguished that case from the present one. I accept the circumstances of that case are somewhat different to the present one. For that very reason, my decision herein does not necessarily need to take account of that decision. In any event, the principle remains the same, namely that the respondent could have facilitated the complainant's attendance without experiencing anything more than minor inconvenience. It failed to do so. It has failed to rebut the prima facie case established by the complainant in that respect.
5.12. In considering the redress to be awarded in this case, I must be cognisant of the requirement that any award for compensation under the Acts should be proportionate, effective and dissuasive. At the same time, I am conscious of the limits imposed on my authority to make awards in circumstances where the complainant was not employed by the respondent at the time in question. My award is reflective, inter alia, of these considerations.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the respondent failed to provide the complainant with reasonable accommodation by failing to take appropriate measures to enable him to have access to employment, contrary to Section 16(3)(b) of the Acts.
6.3. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €10,000. This award is made to compensate the complainant for the distress caused to him as a result of the discrimination by the respondent. In that context, it is not in the nature of pay and is, therefore, not subject to tax.
_____________
Gary O'Doherty
Equality Officer
20th December, 2012
1 DEC-E2008-068
2 A Complainant -v- An Employer , DEC-E2008-068
3 EE5/1986 Gibney v Dublin Corporation
4 See, for example, Wynne -v- Bus Eireann, DEC-E2011-227
5 DEC-E2008-068