Employment Equality Acts
Decision DEC-E2013-029
PARTIES
Brian Lynch
(Represented by Frances Meehan, B.L.,
instructed by O'Connor Solicitors)
- V -
Centre for Deaf Studies, Trinity College Dublin
(Represented by Aoife Newton, Solicitor, IBEC)
File references: EE/2009/958
Date of issue: 09 April 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Failure to provide Reasonable Accommodation - Disability - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Brian Lynch that he was subjected to discriminatory treatment and a failure to provide reasonable accommodation by the respondent on the grounds of his disability in terms of Sections 6(2) and 16 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 23 December 2009 under the Employment Equality Acts. On 22 February 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 18 May 2012. Additional information and correspondence was received from the parties up to 7 September 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 The scope of this complaint relates to access to employment, the consideration of the conditions of employment and to the failure to provide appropriate measures/reasonable accommodation to the complainant. Although some of the issues relate to the time period leading up to the conclusion of the employment relationship, I note that these matters have been dealt with elsewhere, and that the complainant is not pursuing a complaint in relation to the conclusion of the employment relationship.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he commenced employment with the respondent on 1 October 2004 and his employment was terminated by reason of purported redundancy on 30 June 2009. He was employed as a part-time teacher/lecturer.
2.2 The complainant submitted that he was discriminated against in respect of his access to employment in respect of teaching on a 'restructured' course and that no reasonable accommodation within the meaning of the act was provided to him. The complainant submitted that he is profoundly deaf and that he was treated less favourably than a person without a disability.
2.3 The complainant submitted that he was at all times fully capable and competent of carrying out the duties of his employment and relied on the Labour Court in its Determination A Worker (Mr O) v An Employer (No 1) [2005] 16 ELR 113. In it consideration, the Court referred to Mid Staffordshire General Hospitals in NHS Trust v Cambridge [2003] IRLR 556, where the EAT for England & Wales considered an appeal from the decision of an Employment Tribunal in which it was held that the obligation imposed on an employer by Section 6(1) of the Disability Discrimination Act 1995. The complainant submitted that this section corresponds to Section 16 of the Irish 1998 Act and includes an obligation to carry out a proper assessment of the disabled employee's needs. In the head note of the report the following statement of law appears:- "A proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by Section 6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. ..."
2.4 The complainant submitted that the foregoing is authority for the proposition that an employer must make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before taking decisions which are to the employee's detriment. The complainant further submitted that there is no evidence whatsoever that the respondent sought to make any needs assessment for him in respect of his employment generally and in relation to his application for the position of lecturer in the 'restructured' course. Such an assessment necessarily involves discussing the matter with the employee.
2.5 The complainant submitted that the costs of providing ongoing interpreter facilities for him (and such other employees who may require such facilities) is nominal to a large institution such as the respondent and that such facilities are accorded to students. The complainant further submitted that no special facilities were accorded to him in order that he could communicate with administration or management in relation to any employee employment matters or queries that he may have
2.6 The complainant submitted that there is no evidence on his personnel file that there was ever any assessment undertaken or that any subsequent 'reasonable accommodation' was provided to him.
2.7 The complainant submitted that English is not his first language and therefore he has difficulty in fully understanding all of the texts provided to him.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent refutes the complainant's contentions that he was discriminated against in relation to access to employment as regards the restructured course and further refutes that he was not provided with reasonable accommodation.
3.2 The respondent submitted that in June 2009 the Council and Board of College approved a new course - a Bachelor in Deaf Studies Degree Programme (BDS) to commence in the 2009/2010 academic year. This new course meant that a restructuring would have to take place within the Centre for Deaf Studies which involved changes to staffing levels and roles. As a result of this restructure, 12 part-time posts were not being renewed, however, two new posts for half-time lecturers were being created.
3.3 The respondent submitted that there were six candidates shortlisted for interview and they were required to deliver a 10 minute presentation and then undertake an interview. The college used a marking system to mark all of the candidates for the role. To be deemed appointable a candidate must score over 70 marks.
3.4 The respondent submitted that the complainant scored 60 out of a possible 100 marks. When he requested feedback, the recruitment officer confirmed his score to him and provided him with a copy of the matrix used to score the candidates. The recruitment officer also outlined to him that the selection committee felt that he was a committed individual and an enthusiastic character. However the committee felt that he needed to develop a research profile and that they had concerns over his capacity to teach areas other than Irish Sign Language (ISL).
3.5 The respondent refuted the complainant's submission that he was treated less favourably in that he was afforded the opportunity to apply for the role and that the respondent put in place reasonable accommodations in order to ensure that the complainant was given a fair opportunity to apply for the role. The respondent submitted that it booked interpreters of the highest calibre for the interviews, they appointed a deaf person to the interview panel and another hearing person who was a fluent ISL user. It further submitted that of the six applicants for the role, three were deaf and three were hearing. Two people were appointed to the roles, one deaf and one hearing.
3.6 The respondent submitted that the complainant was employed by it since 2004 and there has never been any problem identified in this time, nor has the complainant made any requests for any accommodation to be provided in respect of his employment. The respondent submitted that arising out of the application to the post the complainant was specifically requested to contact the recruitment executive in advance of the interview, if he had "any specific access/support requirements". Although the complainant responded to this email (enclosing the names of his two referees, he did not raise the need for any special facilities.
3.7 The respondent submitted that in his submission, the complainant alleges that the cost of providing ongoing interpreter facilities for him is nominal to a third level institution. The complainant never made the respondent aware that he required such facilities. The respondent put in place a guide on "Supporting Staff with Disabilities". This outlines that a staff member should meet with their line manager and raise the issue, this was never done and therefore the procedure contained within the guide was not invoked.
3.8 The respondent submitted that the complainant alleged that there were no special facilities accorded to him so that he could communicate with the administration or management, if the complainant required such facilities he could have contacted the College Disability Service who would have acted on his behalf. Furthermore, the complainant's line manager was a fluent ISL user.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment, and failed to provide reasonable accommodation on grounds of disability, in terms of Section 6 and 16 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 At the hearing of this matter the complainant outlined that his mother tongue is not English but rather Irish Sign language is his first language. Furthermore, the complainant outlined that it is accepted that persons who are profoundly deaf have literacy problems and that in his own case he has a reduced level of English comprehension when compared to a hearing person. The complainant outlined that deaf people become passive and do not seek out assistance when they should. The complainant suggested that the foregoing issues were known, or ought to have been known, to the respondent and therefore there was an onus upon them to provide its documentation in ISL and to assist him by making allowances for him in various ways.
4.4 In response, the respondent stated that during his employment (in excess of four years), the complainant did not make it known to them that he had any difficulties understanding English, he never sought assistance with translating documentation from English to ISL (or vice versa) and that if he had any difficulties, his line manager was fluent in English and ISL and could have assisted him. Additionally, the respondent has a disability access service which the complainant never availed of.
4.5 At the hearing, the complainant outlined the issues at hand - his contract of employment was issued in English only, he had difficulties during the interview process, and the respondent never provided reasonable accommodation or appropriate measures for his disability on an ongoing basis.
4.6 As regards the submission on behalf of the complainant that issuing contracts in English only amounts to discrimination per se, I am not satisfied that giving staff members whose mother tongue is not English contracts in English only can amount to discrimination in and of itself. Each case must be considered in light of the circumstances that pertain to the employment relationship in its entirety. Factors such as, but not limited to, the employee's knowledge of the language of the contract, the employees knowledge of the business and the work environment, the employer's knowledge of the employee's mother tongue, the availability of translation services - both formal and informal, the size of the company in relation to the numbers of language spoken, the line management structure within the company (in terms of language competence) and the common language used within the company, all contribute to consideration of what amounts to discrimination in the circumstances of the employment relationship.
4.7 In this case, I note from the information on the complainant's personnel file that the respondent did meet with the complainant and his translator to go through his queries on his entitlements in November 2008 when he requested assistance, in addition, his line manager was fluent in both English and ISL and that the complainant had access to a number of formal and informal translation mechanisms. The evidence given at hearing shows that the complainant had undertaken a certificate at third level, where a large component of the course was English, with no apparent difficulty. In the circumstances, I do not consider that providing the complainant's contract in a language understood by him (in this case English only) amounts to less favourable on the disability ground.
4.8 The complainant outlined that he had difficulties during the interview when the projector broke down and that there were a number of interviewers present, the complainant felt at a disadvantage compared with other candidates. Given that translators were present during the interview process and that two members of the panel were fluent in sign language (one deaf and another hearing), in the circumstances, I do not consider that this amounts to less favourable treatment on the disability ground.
4.9 The complainant stated in his written submission and reiterated during the hearing that at all times he was fully competent and capable of undertaking his duties. Under Section 16 of the Acts, the requirement upon an employer to provide appropriate measures/reasonable accommodation only arises where an employee or prospective employee is not fully competent and capable of undertaking the duties of the position. Notwithstanding the foregoing, I note that at all times, the respondent had in place reasonable accommodation measures which the complainant did not avail of. Furthermore, I do not consider that it would be appropriate for an employer to impose the use of appropriate measures upon a person who did not want or need those measures.
4.10 I consider that following on from Section 16(3)(b) of the Acts (the employer shall take appropriate measures, where needed in a particular case to enable ...), there is an onus upon an employee or prospective employee who needs appropriate measures/reasonable accommodation to alert his/her employer to the existence of that need, particularly where his ability to undertake his (prospective) duties has never been raised by either party. The complainant never raised any issue as regards appropriate measures with the respondent. In all the circumstances of this case, I do not consider that the complainant was less favourable treated on the disability ground.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the disability ground has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of a failure to provide appropriate measures on the basis of the disability ground has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
09 April 2013