DEC-E2015-158

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2015-158

Parties

A Civil Servant

-v-

A Government Department

File reference: EE/2014/502

Date of issue:18th December 2015

1. DISPUTE

1.1 This dispute involves a claim by A Civil Servant (“hereinafter referred to as the complainant”) that he was discriminated against by A Government Department (“hereinafter referred to as the respondent”) on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Acts, 1998-2011 (“hereinafter referred to as ‘the Acts”) when the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts.

1.2 The complainant referred a complaint under the to the Director of the Equality Tribunal on 12 September 2014. On 6 August 2015, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 this date my investigation commenced. A hearing was held on 7 October 2015.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.

2. SUMMARY OF COMPLAINANT’S CASE

2.1 The complainant, who is a wheelchair user, has been employed by the respondent as a civil servant since 1981. He began a work sharing in 1999 and was a Higher Executive Officer (HEO) at the time relevant to his complaint.

2.2 The complainant submits that, on 12th June 2014 the respondent notified him by writing of a single HEO vacancy with an Agency under the auspices of the Department, that urgently required an appointment.

2.3 The complainant submits that due to his own personal experience, he decided it would be prudent to visit the building where the vacancy existed to assess if it he could access it as a wheelchair user. Upon making this visit (on 12th June2014) the complainant submits that he was dismayed to find that the building was inaccessible to him as a wheelchair user. Later that day the complainant sent an E-mail to the respondent stating that he was interested in the position but also expressing his frustration that “I appear to tick all the required boxes for the position except for the fact that I use a wheelchair”

2.4 The complainant submits that he sent a further E-mail to the respondent on the 20th of June asking for someone to contact him about the accessibility issue.

2.5 The complainant submits that he heard nothing back from the respondent about the accessibility issue or the position until he received a notice from the respondent stating that interested parties should submit a C.V and that the position would be filled on a “seniority/suitability” basis.

2.6 The complainant submits that he contacted the secretary to the Agency in question to express his concerns about access and express his enthusiasm to fill the vacancy. The complainant submits the secretary confirmed that she felt the building accessibility issue was “unacceptable” and had presented problems in the past.

2.7 Regardless of his concerns, on the 13th June 2014, the complainant expressed his interest in the vacancy to the respondent by phone. A meeting was held on the 24th of July with the Secretary to the Agency and an independent observer from the HR Department. The complainant felt that the meeting went very well and that his previous work experience made him the ideal candidate for the position.

2.8 On the 15th August the complainant was informed that his application had been unsuccessful. The complainant submits that it was at this point that he formed the view that the respondent had manipulated the appointment process.

2.9 The complainant submits that he knows the successful candidate and submits that that person is more senior than him and an extremely capable official.

2.10 The complainant submits that it is clear that the respondent could not in their view appoint him due to the accessibility issues and that he felt excluded from normal work life as a result of the manner in which the whole issue has been handled by the respondent.

2.11 The complaint made it clear at the hearing that his reasons for bringing the complaint to the Tribunal were not motivated by financial considerations nor was he seeking to have the appointment overturned, rather that he felt that the Tribunal was his only recourse in order to have his concerns about the treatment of persons with disabilities addressed.

3. SUMMARY OF RESPONDENT’S CASE

3.1 The respondent rejects the complainant’s assertions that they discriminated against him.

3.2 The respondent agrees with the complainants account of the interview process and all three applicants were treated in the same manner. The advertised position was not a promotion but rather a reallocation of existing staff at the complainant’s grade. Therefore an informal process was used to select a suitable candidate which is standard practice in the Civil Service.

3.3 The successful candidate was appointed primarily due to seniority and the issue regarding the accessibility to the proposed building did not influence the decision making process.

3.4 The respondent submits that had the complainant been successful that the issue of accessibility would then have been examined. It is agreed that this was never communicated to the complainant.

CONCLUSIONS OF THE EQUALITY OFFICER

4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant was discriminated against during the appointment process by the inclusion of criteria relating to the requirement for reasonable accommodation of his disability. The complainant is alleging that the respondent did not appoint him as they knew it would be difficult or impossible to provide reasonably accommodation. I have taken into account all of the submissions, written and oral, made by the parties.

4.2 Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.

4.3The complainant has alleged that he was discriminated against on the grounds of his disability by the respondent. “Disability” is defined in Section 2 of the Acts as meaning –

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

4.4 In the instant case it is agreed that the complainant is suffering from a disability, the respondent was fully aware of that disability and that the building in which the vacancy existed was not accessible to him as a wheelchair user. The complaint was one of three candidates for the vacancy and was rejected following an informal and undocumented process. As all of these facts are agreed by the parties I find that these circumstances are of sufficient significance to raise a presumption of discrimination. It is a matter for the respondent therefor to demonstrate that the appointment process was not tainted by considerations of reasonable accommodation.

4.5 The letter advising candidates of the appointment process makes it clear that

“ As more than one expression of interest has been received it has been decided that the selection process for the position will be largely based on seniority/suitability.”

4.6 In this case both parties agree about the details of the interview process and how it was advertised and that there were access issues with the proposed location. What is in dispute is the decision itself. In this regard, I rely primarily on the complainants assertion that the successful candidate was more senior then he and in his estimation an extremely capable official. At the hearing the complainant it clear that he has no arguments contrary to the successfully candidates suitability for the position.

Taking into account the above and the circumstances of the complaint, I find that there could be no other outcome to the appointment process then the appointment of the successful candidate and that considerations regarding accessibility had no part in that decision.

4.7 Accordingly, I find that the complaint must fail.

4.8 I note that there still appears to be an excellent working relationship between the parties to this complaint but I believe the complainant’s assertion that he felt that this Tribunal was his only recourse in order to have his concerns about the treatment of persons with disabilities addressed. I note that at the hearing the respondent took account of the distress caused to the complainant by the circumstances of this complaint and has undertaken to review its communications process in order to assure that no further such distress arises again.

DECISION OF THE EQUALITY OFFICER.

5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the respondent has not discriminated against the complainant on the grounds of disability regarding reasonable accommodation.

Therefore, I find against the complainant.

_______________________________

Peter Healy

Adjudication Officer/ Equality Officer

18th December 2015