The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-052
Parties
An applicant
V
A Training Agency
(Represented by William Fry Solicitors)
File No. EE/2009/609
Date of Issue: 1 May 2012
Keywords:
Employment Equality Acts - Discriminatory treatment - Access to employment - Disability - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by An Applicant (hereafter "the complainant") that she was subjected to discriminatory treatment by FÁS (hereafter "the respondent") on the ground of her disability. The complainant claims that the respondent discriminated against her by not offering her a third year placement on a community employment scheme. The complainant lodged a stage 3 complaint with the respondent's client complaint's procedure and took exception with a statement that was made by agents of the respondent in response to the complainant's claim. The disputed statement stated: "participation on community employment schemes is not intended to be a rehabilitative programme".
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 August 2009 under the Employment Equality Acts. On 3 February 2012 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 22 March 2012.
2. Case for the complainant
2.1. The complainant was a participant on a community employment scheme from 16 February 2009 to 10 April 2009. She had also previously been involved in two other community employment schemes. The complainant suffers from depression.
2.2. The complainant submitted that she was refused a third year on a CE scheme. The complainant's position is that she was so refused because she is a person with a disability. The fact that the complainant is a person with a disability is a known fact by the respondent as the complainant is in receipt of disability related social welfare payments.
2.3. The complainant submitted that she had to go through an ordeal with the respondent in order for her to complete her 2nd year of a FETAC training course. She had undertaken this course as a condition of employment while engaged in a scheme. The respondent had paid for the first year of her course fees. It was submitted that it made no sense to pay for the first year and then not to offer the complainant her third year placement.
3. Case for the respondent
3.1. The respondent runs community employment (CE) schemes in co-operation with a variety of sponsors. CE schemes are designed to provide eligible long-term unemployed people (including people with disabilities) with an opportunity to engage in useful work within their communities on a temporary, fixed term basis. The sponsors provide these schemes for the benefit of the local community. Participation is such scheme is normally for one year. Extension can be granted for a further year (Part-time integration option) or by a further two years (Part-time job option). Age related rules also apply and it was submitted that participants in receipt of disability linked social welfare payments may be eligible for up to 4 years on CE, however, this is not necessarily four consecutive years. Extension on CE are not granted automatically and are dependant on various factors including the demand at the particular time for places on CE, the needs of the participant and the benefits of the programme to the participant.
3.2. The respondent rejects the complainant's case and submitted that the complainant had failed to establish a prima facie case of discrimination on the disability ground.
3.3. CE is first and foremost an active labour market programme with the primary objective of progressing participants into the open labour market. The reply submitted on behalf of the respondent to the internal complaints' procedure was the respondent merely stating the reality that while the respondent acknowledged that the complainant's medical report suggests that the complainant's condition would benefit from continued employment, such an argument was not a primary consideration. It was submitted that the respondent's aim is to get unemployed persons back into the active labour market. The respondent had formed a view that the complainant would not gain any additional benefit from an additional year. She was viewed to be ready for the labour market. It was additionally submitted that such a view was formed in the context of raising unemployment numbers and the need to ensure that new participants got to avail of the respondent employment programmes.
3.4. It was submitted that the disputed statement does not amount to discrimination on the ground of disability or any other ground. The complainant was not entitled to argue that the fact that the respondent had agreed to pay for first year training programme constituted a legitimate expectation that she would be entitled to remain on scheme for a third year. In any case the respondent submitted that it had found another grant scheme that had paid for the remainder of the complainant's course.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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".
4.2. Having heard the full facts of this case I am satisfied that the complainant was not offered a third year placement on a CE scheme 1) because the respondent had made a decision that the complainant would not gain any further benefit from such a placement and 2) because of the demand for placement on such schemes. I am satisfied that neither of these reasons is in any way influenced by the fact that the complainant is a person with a disability. It ought to be noted that it is clear to me that the complainant was accepted on CE in the knowledge that she is a person with a disability (the nature of the said disability may not have been known) and that the respondent did and continues to employ large numbers of people with disabilities on its CE schemes.
4.3. It became clear during the hearing that the complainant, who obviously disagrees with the respondent's assessment of whether she would benefit from continued employment on a scheme, is of the opinion that the respondent refused her the third year because of an incident that had occurred involving a third party during her second year placement. I note that the complainant had taken exception to a letter being removed from a file, the assessment that the respondent had made relating to said letter and the fact that she had been informed that the letter had been 'torn up'. I am satisfied that this issue is not relevant to this investigation. Such an incident is clearly is a matter for the respondent and I note that the respondent has a grievance procedure for such matters. I am entirely satisfied that the incident did not occur because of, or was significantly linked with, the fact that the complainant is a person with a disability.
4.4. In relation to the offending statement. I find nothing discriminatory in a statement that merely communicates a fact. What the complainant's argument amounts to - for the purposes of this investigation - is that she ought to have been entitled to a third year because she is a person with a disability and because her doctor had recommended that she remain in employment. There is nothing in these Acts that supports a position where a person with a disability is entitled to more favourable treatment than others. There is no evidence that the complainant was treated any less favourably because she has a disability.
4.5. I find that the complainant had not established any facts from which I can draw an inference of disability discrimination. There are no facts to support an inference that a person with no disability or a different disability than the complainant would have been offered a third year placement in similar circumstances.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the disability ground. Therefore, this complaint fails.
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Tara Coogan
Equality Officer
1 May 2012