EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-116
PARTIES
Mr Eugene (Yevgen) McKeefe
-V-
Office of the Revenue Commissioner t/a Manpower Planning and Recruitment
(Represented by Anthony Kerr S.C.)
File reference: EE/2014/434
Date of issue: 3rd November 2015
1. Dispute
1.1 This dispute involves a claim by the Complainant that he was discriminated against by the Respondent on the grounds of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 – 2008 in relation to access to employment in terms of Section 8(1)(a) of the Act.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 7 August 2014 under Section 77 of the Employment Equality Acts. The Director appointed Joe Donnelly as an Equality Officer on 8 September 2015 and delegated the case to him for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part V11 of the Acts, on which day my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to hearing on 22 September 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 In Spring 2014 the complainant saw an online advertisement inviting applications for the position of Administrative Officer in Information and Communications Technology, AO(ICT),with the Office of the Revenue Commissioners in Dublin. He applied for this position completing the relevant documentation on 25 April 2014. He received an email inviting him to an interview which took place on 26 May 2014. Prior to the interview each candidate received an explanatory booklet regarding the interview process, part of which was to be a presentation by the applicant on a specific subject. This presentation should last no more than 10 minutes.
2.2 At the start of the interview the complainant told the Interview Board that he had a stutter. He was told to proceed but, as it transpired, he was unable to complete his presentation within the allotted time having only gone through 5 of his 7 presentation slides. There were three other modules involved in the interview, the whole process taking approx. 40 – 45 minutes.
2.3 On 6 June 2014 the complainant was informed by email that he had not been placed on the panel of successful candidates. He decided to seek feedback on his interview and received same from the Chairman of the Interview Board on 23 June 2014. Amongst the points made by the Chairman was the fact that the complainant failed to complete his presentation within the allotted time. Other issues also formed part of the feedback.
2.4 The complainant was unhappy with the totality of the comments and sent off a detailed response to the HR Dept. He also requested a formal review referencing Section 8 of the Code of Practice of the Commission for Public Service Appointments. On 4 July 2014 he was informed that this review would be carried out by a Principal Officer from the Dublin Region of the Revenue Commissioners. On 11 July 2014 he was forwarded the result of the review. Paragraph 2.8 of the review stated; “Reference is made by Mr. McBride of a certain personal impediment during the presentation, that militated against him to complete this part of the test within the time permitted. There is no evidence on the application form or from the interview notes that this was a specific issue, nor is it mentioned by the candidate or on record subsequently during the formal competency-based interview.” The decision of the investigation officer was that“an allegation of breach of the Code has not been proven or presented”.
2.5 The complainant immediately responded to the HR Dept. taking issue with the content of the review and the manner in which it had been conducted. He requested assistance in lodging an appeal of the review. The complainant did not receive a response to this request and therefore proceeded to issue Form EE2 addressed to the Revenue Commissioners in August 2014 and also lodged a complaint under the Employment Equality Act at this time.
2.6 On 19 January 2015 the respondent replied setting out a detailed response to the questions raised in Form EE2. As part of that response it was stated that the Interview Board members “confirmed that Mr. McK. did indicate at the start of his presentation that he had a speech impediment.” In addition it was stated that “it was an oversight that the Board member taking the notes did not record that the candidate said that he had a speech impediment.”
2.7 In April 2015 the Commission for Public Service Appointments carried out an investigation into the applicant’s complaints alleging breaches of the Commission’s Code of Practice. The completed report was sent to the Chairman of the Revenue Commissioners on 1 May 2015. The report looked at a number of issues including the interview process. In this regard it states that “the Commission also notes that the Complainant did not bring his speech impediment to the attention of the Revenue Commissioners prior to his interview and seek any specific accommodations to assist him during the course of the interview. It considers that if he required specific accommodations he ought to have flagged this with the Office Holder in advance of his interview.” The report concluded that the Commission does not find that the Office Holder breached the Code of Practice as alleged. It also concluded that “it believes that the Office Holder should take steps to ensure that candidates know that they may seek specific accommodations in the event that they are required.”
2.8 In summary the complainant contends that he applied for a position with the respondent and when called to an interview advised the Interview Board that he had a speech impediment prior to the commencement of the interview. There was no section on the Application Form whereby a person with a disability could seek accommodation for same. In this case, having informed the Board of his impediment, he did not receive any accommodation in this regard as a result of which he could not complete his presentation. He was therefore placed at a disadvantage and this had a knock-on effect on the rest of his interview. This disadvantage was compounded both by the feedback and the initial appeal process whereby there seemed to be no recognition that he had informed the Board of his impediment and his failure to complete his presentation was highlighted as a factor in his unsuccessful presentation. The complainant also felt that he received little assistance in the appeal process and that the respondent’s actions were in breach of the relevant Code of Practice.
3. Summary of Respondent’s Case
3.1 The Interview Board were unaware of the Applicant’s speech impediment until it was brought to their attention immediately prior to the interview.
3.2 If the Complainant had informed the Respondent beforehand then advice could have been sought and appropriate arrangements could have been put in place for the interview process. There was an opportunity for this information to be conveyed to the Board when the Complainant was confirming his attendance at the interview.
3.3 The Board did accommodate the Complainant at the interview by allowing him an extra 45 seconds for his presentation.
3.4 There were four elements (competencies) involved in the interview process. Applicants were required to achieve 40 marks in each competency in order to be successful in the interview. The Complainant did not achieve the required level in three out of the four competencies. There was no time element involved in the other competencies.
3.5 The matters which are the subject of this complaint were referred to the Commission for Public Service Appointments for review under Section 8 of the Commission’s Code of Practice. The Commission in their conclusion state that “the Commission considers that the complainant ought to have raised any requirements for accommodations with the Office Holder in advance of the interview”. The Commission did not find that the Office Holder (Respondent) breached the Code of Practice as alleged.
3.6 The respondent attempted to resolve the issue. They wrote to the complainant on 28 May 2015 advising him that they had now taken steps to ensure that future Candidate Information Booklets would make it clear that candidates with disabilities may seek specific accommodations if required. They also offered to make a donation of 1,000 euro to the Irish Stammering Association or some other appropriate charity. This was declined by the Complainant.
3.7 As regards breaches of the Code of Practice evidence was given by the Secretary to the Commission for Pubic Service Appointments as regards the different Codes of Practice. The complainant had referenced the Code of Practice for the Appointment of Persons with Disabilities to Positions in the Civil Service and Certain Public Bodies. Section 1.5 of that Code states that it “applies to external and internal recruitment and selection processes for appointment to positions in the Civil Service and certain other public bodies where government policy necessitates the confining of an appointment process to persons with disabilities as defined in the Disability Act 2005”. This did not apply in this case and therefore the relevant Code was the Code of Practice for Appointments to Positions in the Civil Service and Public Service. The witness had accepted and signed off the report which concluded that there was no breach of that Code of Practice.
3.8 Ultimately the onus was on the complainant to advise the respondent of his speech impediment in advance of the interview.
4. Findings and Conclusions of the Equality Officer
4.1 The issue for decision is whether the complainant was discriminated against on the grounds of disability in relation to access to employment. I have taken into account all evidence, both written and oral, made to me by the parties. Section 8(1) of the Act states;
“In relation to-
(a) access to employment
(b) conditions of employment
(c) training or experience for or in relation to employment
(d) promotion or regrading, or
(e) classification of posts
an employer shall not discriminate against an employee or prospective employee……”
Section 8(5)(a) of the Act further states;
“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee –
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered”
4.2 The complainant advised the Interview Board prior to the commencement of the interview process of his speech impediment. I accept that in the absence of any reference to possible accommodations for applicants with disabilities in the Candidate Information Booklet that the complainant believed this to be the appropriate time to bring his issue to the attention of the Board.
4.3 Section 16(3)(b) of the Act states;
“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
(ii) to participate or advance in employment or
(iii) to undergo training,
unless the measure would impose a disproportionate burden on the employer.
4.4 In this case the complainant was advised by the Board to carry on. I believe that the Board should have enquired of the complainant what accommodation he required and conferred amongst themselves in this regard. The Board chairman in his evidence stated that the complainant was given an extra 45 seconds to give his presentation. The Board were aware that the complainant still had not completed his presentation at that stage. The complainant challenged the assertion that he had been given any extra time. In the light of the fact that the Board were aware of the complainant’s speech impediment, and aware that he still had some part of his presentation to deliver, I do not believe that even the provision of an extra 45 seconds could equate to reasonable accommodation in this regard.
4.5 The complainant was one of 45 candidates called to interview. These interviews took place over a period of several weeks. The complainant was one of the first to be interviewed. It was stated in evidence that if the Board had been aware of the complainant’s speech impediment prior to interview that the relevant disability association would have been consulted and appropriate protocols put in place for the interview. I find therefore that there would have been no major issue involved in rescheduling the interview and that this alternative should have been put to the complainant.
4.6 The bottom line of the respondent’s defence is that the onus was on the complainant to advise them of his impediment prior to interview and by this they appear to mean several days before the interview. They issued a comprehensive fourteen-page booklet to prospective candidates which did not include any reference to persons with disabilities and possible accommodations for same. I cannot accept this assertion as an adequate defence. I note that the CPSA report stated that the respondent should take steps to ensure that candidates know that they may seek specific accommodations in the event that they are required. I further note that the respondent does so now. This change is obviously too late for the complainant.
4.7 The respondent also argued that the complainant failed to achieve the required standard in three out of the four competencies which formed the interview process. I believe however that the inability to complete his presentation had to have some negative effect on the complainant’s subsequent performance in the rest of the interview.
4.8 I therefore conclude that the respondent failed to provide reasonable accommodation in respect of the disability and that this amounts to discrimination according with Section 8(5) of the Acts.
5. Decision
5.1 I have investigated the above complaint and therefore make the following decision in accordance with Section 79 of the Acts, that the respondent did discriminate against the complainant in relation to access to employment on the grounds of disability contrary to Section 8(1)(a) of the Acts and in accordance with Section 82 of those Acts I award the complainant 10,000 euro for the discrimination suffered.
5.2 This figure represents compensation of the complainant’s rights under legislation in relation to discrimination and does not include any element relating to remuneration. The amount therefore is not taxable.
5.3 I further order the respondent to ensure that all relevant literature sent to prospective applicants includes a section dealing with disabilities and the provision of accommodations for persons who require same. I also require the respondent to ensure that all members of interview boards receive appropriate training and refresher courses in this regard.
_________________________
Joe Donnelly
Adjudication Officer
3 November 2015