The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-099
PARTIES
An Applicant for Employment
(Represented by David Boughton BL,
Instructed by Joseph P. Gordon & Co. Solicitors)
AND
A County Council
(Represented by Liam Mac Namee
instructed by the Local Government Management Agency)
File Reference: EE/2012/632
Date of Issue: 30th September 2015
1. DISPUTE
1.1 This dispute concerns 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 (hereinafter referred to as ‘the Acts’) in relation to access to employment and his application for a position on a General Operative Panel with the Respondent pursuant to Section 8(1)(a) of the Acts, and further that he was not afforded reasonable accommodation in terms of having any special facilities available to him.
1.2 Through his Solicitors, the Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 19th December 2012. On 20th May 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, 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 had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to hearing on 27th May 2015. Both parties were represented and in attendance. All written and oral evidence presented to the Tribunal including documentation submitted before and during the hearing have been taken into consideration when coming to this decision. I also indicated that I would be relying upon the statutory provisions and general case law relating to disability discrimination.
2. SUMMARY OF THE COMPLAINANT'S POSITION
2.1 The Equality Tribunal received the complaint for the Complainant on 19th December 2012 in relation to his unsuccessful application to the Respondent for recruitment to a General Operative Panel in or around July 2012. By way of background, the Complainant submits that he always suffered from learning (reading and writing) difficulties which were unfortunately not understood and addressed during his education. He is clear that his difficulties had been identified as dyslexia, (being a specific learning difficulty which makes it harder for some people to read, write and spell), when his mother brought him to a doctor at twelve years of age. The Complainant admitted to being ashamed of his condition and hiding the fact that he had left secondary school without any qualifications. The first time he obtained a formal confirmation of this condition was in a Report submitted herein, following an assessment by Ms M O’M, Educational Psychologist, on 23rd October 2014, for the purposes of supporting this complaint. Ms O’M confirmed he has classic dyslexic problems in relation to literacy and one of the most severe specific learning difficulties that she has ever encountered in her profession. He had always managed to get by with the assistance of his wife, who dealt with anything that involved reading and writing including dealing with bills and farm paperwork and filling out his forms for employment. He also managed to obtain his Safe Pass and pass other practical courses with minimal reading and writing.
2.2 The Complainant and his wife have a dairy and beef farm, but he required paid employment outside of the farm to support his family. In addition to providing farm relief service, he had previously worked for the Respondent on a sub-contractual basis for a number of years before working directly as a Temporary General Operative for a nine month period from 31st March- 31st December 2008. This contract had not been renewed owing to the economic downturn. The application for the Temporary General Operative position in 2008 had not required an aptitude test. The position involved various manual tasks which did not involve reading and writing, and as a consequence his reading and writing difficulties had never been an issue, nor had there been any reason to bring them to the Respondent’s attention previously.
2.3 The position which he applied for in June/July 2012 was identical to the position which he had held previously. His wife had noticed the advertisement in a paper, which was based on a circular entitled ‘Panel for General Operatives’, the only requirements for the position being that applicants had a current Safe Pass Card and a full Category B Licence. The circular went on to provide the contact details for obtaining application forms and full details. Upon enquiring about the position, the Complainant received an application form and a document entitled ‘Duties of General Operative (Roads)’. All of the duties listed could be said to be manual in nature. Towards the bottom, it stated: “Ability/experience in doing more skilled work e.g. kerbs, wall construction etc. would be an advantage.” and “Due to the volume of applications, a shortlisting/aptitude test may apply.” The Complainant’s wife completed the application form for him, which was a slightly longer version of the application form for the 2008 position. Notably, neither application form included a section which would have allowed for disclosure of a disability and a request for the provision of special facilities during the recruitment process.
2.4 Upon receiving notice that he had to attend for an aptitude test, the Complainant’s wife gave evidence that she telephoned the Respondent to see if there were any special facilities to accommodate his reading and writing difficulties. Although the area of employment was highlighted as one which employs or could potentially employ people with literacy or learning difficulties, she was told that there were no special facilities in place in relation to the aptitude test and that if her husband did not sit the aptitude test, his application for the position in question would not be considered. Arising from his wife’s phone call, the Complainant received a further copy of the document entitled ‘Duties of General Operative (Roads)’. He was not furnished with any information in relation to any special facilities for the aptitude test. Under cross-examination, it was put to his wife that in fact she had contacted the Respondent to enquire about the special facilities required for the job in general and not specifically in relation to the aptitude test. She replied that as her husband had no difficulty doing the job previously, she would have had no need to enquire as to the facilities available, and that her enquiry related to the aptitude test. It was also put to her that she had not been specific enough in relation to identifying the precise disability, and reference to ‘reading and writing difficulties’ without mentioning dyslexia was insufficient to place the Respondent on notice that the Complainant had a disability requiring reasonable accommodation.
2.5 Having been informed that there were no facilities available to accommodate his reading and writing difficulties, the Complainant felt that if he was to be considered for the Panel he had no choice but to go ahead and sit the General Operative aptitude test at the Respondent’s Offices on 5th July 2012. He was required to sit alone without communication with any other persons and complete the test. During the test, he encountered significant difficulties reading the paper and as a result, was unable to answer most of the questions which related to Knowledge of the Respondent, General Operative Role and Health & Safety. He fared somewhat better in the Basic Numeracy section but overall received a poor result. A copy of the Complainant’s test paper and results was furnished to the Tribunal. It was evident and not disputed by the Respondent that he clearly had difficulty reading the questions, the answers of which would have been known to
him given his previous history of working with the Respondent.
2.6 By letter dated 11th July 2012 from Ms H (SEO – Human Resources), the Complainant was informed: “Due to the large volume of applicants, candidates have now been shortlisted based on relevant experience/skills and results of the aptitude test. I regret that you are not being called for interview at this time.” Upon receipt, the Complainant contacted Ms H and informed her again of his literacy problems and queried whether an interview was possible. Although sympathetic, Ms H declined this on the basis that this would not be fair on people who were successful in the aptitude test. She stated that she would speak to a colleague about the situation and assess whether a new panel could be drawn up or an aptitude test re-held with the provision of such assistance as is required to those with learning difficulties, neither of which materialised. She also indicated that there were only four vacancies on offer which would be of short duration, so it was not really worth his while pursuing a position.
2.7 The Complainant confirmed that had there been a space on the application form to indicate his disability and request special facilities for the aptitude test, that he would have disclosed his disability. Subsequent to submitting this complaint, the Complainant recently underwent another competition with the Respondent for the General Operative Panel. The application form included a section to indicate his disability and request special facilities for the aptitude test. His wife completed the form and indicated that the Complainant had dyslexia and requested special facilities. On foot of same, he received a phone call on behalf of the Respondent enquiring about the special facilities required. At the aptitude test which he undertook around April 2015, he was provided with two assistants to read the questions to him and write the answers down. He was able to complete the test without the difficulties encountered in relation to the 2012 competition. He was awaiting the outcome as at the date of the hearing herein.
2.8 The Complainant submits that he suffers from learning difficulties including dyslexia which would come within the wide definition of disability pursuant to Section 2 of the Acts and includes “a condition or malfunction which results in a person learning differently from a person without the condition or malfunction.” In relation to the aptitude test required as part of the recruitment process for the General Operative Panel, he submits that the Respondent failed to provide any special facilities to cater for his dyslexia in relation to undertaking a required aptitude test, and thereafter failed to provide him with a new assisted test and/or interview, and thereby failed to afford reasonable accommodation under the Acts. The Complainant relied on the Labour Court decision in A Government Department -v- An Employee EDA061, where it held that the duty to reasonably accommodate an employee with a disability is a proactive duty and a means to an end, which is reached when the person is placed in a position where they have access to advance in employment. It was submitted that having been informed of the Complainant’s disability, it was incumbent on the Respondent to be proactive and undertake an enquiry to consider his degree of impairment and what special facilities and supports should have been available to him to enable him to successfully complete the aptitude test. The failure to provide appropriate measures constitutes a prima facie case of discrimination in terms of access to employment.
SUMMARY OF THE RESPONDENT’S POSITION
3.1 The Respondent confirms that the Complainant was employed by the Respondent for a nine month period in 2008, and his file in this respect had been furnished to the Complainant and Tribunal. The Respondent fully accepted that the Complainant had been an excellent employee. It is also common case that in April 2012 the Respondent advertised for General Operatives, and owing to the high number of approximately 500 applicants it was decided to hold a written test, which would be used to select candidates for interview. Ms H (SEO – Human Resources), who was responsible for HR and the recruitment process at the material time, gave evidence on behalf of the Respondent and confirmed that this was the first time that an aptitude test had to be held for a General Operative Panel, owing to the unprecedented number of applicants and demand for employment during the economic downturn. She confirmed that many of the applicants were of an extremely high calibre with engineering qualifications, etc. She gave evidence as to how the aptitude tests were run and the marking system adopted. Of the 488 applicants, 385 underwent the aptitude test. She personally scored all of the tests and decided that the 128 applicants bunched at the top would be called for interview, resulting in 103 applicants being placed on a Panel for Temporary General Operative roles within four areas. Only a small number of the successful applicants placed on the Panel were ultimately offered any employment.
3.2 The Complainant applied for the post and was subsequently advised on 25th June 2012 that he would be required to attend for a written selection aptitude test on 5th July 2012. Prior to the test, the Respondent was contacted by a significant number of individuals regarding the assessment test. Ms H and one other employee took the calls. No log or record was kept of these individual calls as the majority were general enquiries, and in most instances no specific names were given by the callers. The Respondent was therefore not in a position to rebut the Complainant’s assertion that it was contacted in relation to the Complainant’s application in advance of the aptitude test by his wife advising that he had reading and writing or literacy difficulties, and Ms H accepted in evidence that such a call could have been made. They received a number of calls prior to the assessment test advising of literacy issues in respect of which a standard response was issued that the normal test procedures would apply. If a call had been received advising that any applicant had a particular disability, it would have immediately been followed up. No special arrangements were afforded to any of the applicants undergoing the aptitude tests.
3.3 The Respondent submitted that the Complainant underwent the aptitude test on 5th July 2012 but unfortunately, he did not achieve a significantly high enough mark to be included in the interview process. He was dissatisfied with the result and contacted the Respondent on a number of occasions in the course of which he intimated that he suffered from a disability but provided no further information regarding its nature. He requested that he would be called for interview but this was not feasible as only those candidates who had reached the qualifying mark could be considered for interview. Ms H held it would not have been fair to the other candidates to allow him to undergo the test again at that stage.
3.4 Ms H was most candid in her evidence and explained that owing to the large volume of applicants, this was the first time that an aptitude test had been used in relation to a General Operative competition. Upon marking the papers, it was apparent to Ms H that some of the candidates had literacy difficulties which had not been anticipated beforehand and she had assumed that all applicants were ‘literate’ based upon the requirement for a valid Safe Pass. In hindsight she would have managed the tests differently. Arising from the claim herein a space for applicants to indicate whether they have a disability and to request special facilities was subsequently included in relation to the 2015 General Operative competition. She also confirmed that such a provision had been included within application forms for other competitions for clerical officers where the posts themselves required a certain level of literacy.
3.5 It is accepted by the Respondent that the Complainant has dyslexia comprising of a disability within the meaning of the Acts. However, it was not aware of his disability at the material time of the aptitude test on 5th July 2012. It was common case that the Complainant had not made any reference to his disability whilst previously employed by the Respondent, and at no time had the issue of capability or disability either arisen or been discussed. The Complainant would have had specific knowledge of the Council’s Dignity at Work Policy as a previous employee and having confirmed receipt of the Policy. The Respondent is an equal opportunities employer fully committed to equal treatment of its employees in all respects. The Respondent also operated a national literacy programme and return to learning programme but the Complainant confirmed that as a temporary employee, these had not been available to him.
3.6 Overall, the Respondent submitted that the Complainant has not established a prima facie case of discrimination. The mere fact that he has claimed subsequent to the aptitude test that he was disadvantaged in relation to those who were successful does not of itself substantiate a claim of discrimination. The Respondent took issue with the lack of any specific diagnosis and lack of specific phraseology to describe the Complainant’s disability, and in particular the interchangeable use of the terms ‘learning difficulty’ and ‘literacy difficulties’. It distinguished between the characteristics of the two and submitted that it is not sufficient for the Complainant to put forward his case only on the basis of stated learning or literacy difficulties. It submitted that there is a requirement for expert evidence as to the nature and degree of the disability in respect of which the claimant claims to suffer, and that generalised learning difficulties in themselves will not in an unsubstantiated form constitute a disability. The Complainant had provided no evidence of a diagnosed disability prior to the assessment of the Educational Psychologist on 23rd October 2014 and Report obtained for the purposes of this complaint.
3.7 The Respondent further submitted that the onus was on the Complainant to provide the Respondent with the specifics of his learning difficulty if he wished to seek reasonable accommodation, as being required to inform the process of making the necessary adjustments. If the Respondent had been aware of and been provided with a clinical assessment, appropriate reasonable accommodation could have been made. With reference to the Complainant’s wife referring to his ‘literacy difficulties’, the Respondent relied upon a decision of the Equality Tribunal in Two Complainants -v- A Primary School DEC-S2006-028, which found that a literacy difficulty in itself does not constitute a disability because it was not attributable to “a condition or malfunction which results in a person learning differently from a person without the condition or malfunction.” The Respondent further relies on the Equality Decision of Buckley & Buckley -v- Maps Limited t/a McDonalds DEC-E2005-004 in support of its contention that as it had not been aware that the Complainant had a disability, it could not have discriminated against him in relation to the aptitude test and nor could it have provided him with reasonable accommodation.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The main issue for my decision in this matter is whether or not the Complainant was discriminated against by the Respondent on the grounds of disability in relation to his application for a position on a General Operative Panel, arising from his difficulties undergoing the aptitude test owing to his dyslexia, and leading to his non selection for an interview. At the hearing, it was accepted by the Respondent that the Complainant has dyslexia being a disability within the meaning of the Acts, but maintained that it did not have sufficient notice or knowledge of same before the aptitude test in order to provide the requisite facilities and ensure that reasonable accommodation was made within the meaning of the Acts.
4.2 Section 85A of the 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. When investigating a complaint and applying the required burden of proof, the role of an Equality Officer includes undertaking an examination of any conflicts of fact in the evidence presented by the Parties to arrive at reasoned findings of fact.
4.3 It is also helpful to set out the relevant provisions of the Acts pertaining to the facts in relation to this complaint. Section 8(1) of the Acts provides:“In relation to- (a) access to employment,… an employer shall not discriminate against an employee or prospective employee…” and 8(5) provides: “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…” Section 6 of the Acts defines discrimination as follows: “6.- (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where- (a) 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 specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’) which- (i) exists…,” and“(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as ‘‘the disability ground’’)…” In relation to the provision of special facilities required to enable access to employment, Section 16(3)(b) provides: “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.”
4.4 Firstly, I have to consider whether any or sufficient notice of the Complainant’s disability was given to the Respondent in advance of the aptitude test so that it could act appropriately in respect of same. The Complainant asserts that his wife contacted the Respondent to enquire about the provision of special facilities in respect of the aptitude test whilst the Respondent contends that her call related to facilities for the General Operative position. However, as the Respondent did not keep a record of calls made regarding the aptitude test it is unable to rebut the Complainant’s evidence in this respect. In circumstances where the Complainant had not encountered any difficulties whilst previously working in an identical role for the Complainant in 2008, on balance I find that it is more probable that her query related primarily to special facilities for the impending aptitude test. The fact that 385 candidates underwent the aptitude test without any candidate being accommodated with special facilities also supports the Complainant’s contention that no special facilities were readily available. Once the Respondent had notice of a potential difficulty, I find that the onus was on it to make further enquires as to the precise nature of the disability and what facilities were required for the test. Given that the Respondent retained no records of enquiries relating to the aptitude test, I also reject its assertion that the Complainant did not provide sufficient information as to the nature of his disability.
4.5 In any event, I am satisfied that the absence of a definitive diagnosis or label and/or the use of ‘learning’, ‘literacy’ or ‘reading and writing’ difficulties should have prompted the Respondent to make further enquiries as to the precise nature of the difficulties and what would be required to accommodate same. It was at this stage that the Respondent should have requested any additional information regarding the Complainant’s difficulties including a definitive diagnosis and special facilities required rather than retrospectively relying upon the absence of same as a defence to this complaint. As contended on behalf of the Complainant, it is well established that: “The duty to provide special treatment or facilities is proactive in nature.” (A Government Department -v- An Employee EDA061). For these reasons, I reject the Respondent’s contention that it did not have sufficient notice of the Complainant’s disability and reliance upon Buckley & Buckley -v- Maps Limited t/a McDonalds DEC-E2005-004. I also accept the Complainant’s clear evidence that he was well aware that his literacy difficulties arose as a result of dyslexia although he had not obtained a professional Report prior to the aptitude test in question. I further find that where the Complainant’s literacy difficulties arise from his dyslexia, the facts herein can be distinguished from the case of Two Complainants -v- A Primary School DEC-S2006-028 as relied upon by the Respondent, where in relation to Mrs A, the Equality Tribunal found that “… her literacy difficulties arise from personal and family circumstances rather than a cerebral condition.”
4.6 Secondly, I have to consider whether the Complainant was discriminated against on the grounds of disability as a result of not having special facilities made available to him in relation to undertaking the aptitude test. Having considered all the evidence, I find that there was a general failure by the Respondent to consider its obligations in relation to affording reasonable accommodation under the Acts in relation to the competition process in question. Had there been in place a proper mechanism which would have enabled candidates to request special facilities, the situation giving rise to this complaint could have been avoided. I accept that the Respondent was caught somewhat short by the unprecedented number of applicants which led to the process not being fully thought through and planned out. Ms H very fairly conceded that in hindsight she would have managed the aptitude tests differently. Arising from this claim a space for applicants to indicate whether they have a disability and to request special facilities was subsequently included in the 2015 General Operative competition, as had been the case for other competitions. Based upon the uncontroverted evidence that the Complainant disclosed his dyslexia in the space provided on the 2015 General Operative application form and availed of special facilities, I am satisfied that he would also have done so in relation to the 2012 competition had he been so permitted. It was suggested on behalf of the Respondent that given the high calibre of Applicants, that had the Complainant been afforded special facilities and made it through to the interview stage he may not have been successful in being placed on the 2012 General Operative Panel. However, it is well established law that the Tribunal’s role is not to decide whether the most meritorious candidates were selected but rather to determine whether the selection process was tainted by discrimination on any of the impugned grounds. (For example see Lavey -v- HSE DEC-E2008-046 & UCA + L -v- Kulwant Gill EDA0817) In this respect, I can conclude with certainty that as a result of not having his dyslexia accommodated with reading and writing facilities, the Complainant suffered a significant disadvantage as against his non-disabled comparators in relation to the aptitude test and chances of being shortlisted for interview. I am also of the view that it was too late to remedy this disadvantage once the candidates had been shortlisted for interview and the defective process could not have been reversed at that stage.
4.7 For the aforesaid reasons, I find that the Complainant has established facts from which discrimination may be inferred which have not been rebutted by the Respondent based upon my assessment of all the evidence. In particular, I find that the Complainant was discriminated against on the grounds of disability contrary to Section 6(2)(g) and 8(1)(a) of the Acts in relation to his application for a position on a General Operative Panel with the Respondent pursuant to Section of the Acts, and further that he was not afforded reasonable accommodation in terms of having any special facilities available to him.
5. DECISION
5.1 I have concluded my investigation of the complaint herein and based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that:
(i) the Complainant was discriminated against by the Respondent on the grounds of disability contrary to Section 6(2)(g) of the Acts in relation to access to employment and his application for a position on a General Operative Panel with the Respondent pursuant to Section 8(1)(a) of the Acts and
(ii) he was not afforded reasonable accommodation in terms of having any special facilities made available to him to assist with his disability when undergoing an aptitude test.
Therefore, I find for the Complainant.
5.2 In accordance with Section 82 of the Act, I order the following:
(a) Given that the maximum award which may be ordered under Section 82(4)(b) of the Acts is €13,000 (where the Complainant was not in receipt or remuneration at the date of reference) and taking into consideration the proactive steps already taken to remedy its procedures to facilitate applicants with disabilities for job competitions, that the Respondent pay the Complainant €7,500 in compensation within 42 days herewith for breaches of the Acts. The award is redress for the infringement of the Complainant’s statutory rights and therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(b) There is also an expectation that a public authority will lead by example. Although the Respondent has taken some positive steps to remedy the matter and has included a space whereby applicants can now indicate a disability and whether
special facilities are required, I deem it necessary to direct that the Respondent review its recruitment policy and procedures in relation to all its competitions to ensure that there is a clear means of requesting special facilities and procedures for ensuring that reasonable accommodation is afforded to any applicants requesting same.
(c) Finally, I recommend that within the parameters of ensuring a fair job application process, that the Respondent considers the Complainant favourably for any future employment opportunities.
____________________
Aideen Collard
Equality Officer
30th September 2015