EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-065
PARTIES
A Job Applicant
Vs
A Recruitment Service
FILE NO: et-154228-ee-15
DATE OF ISSUE: 19th of April, 2016
1. Dispute
This dispute involves a claim by A Job Applicant that he was discriminated against by A Recruitment Service on the grounds of disability, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 when they failed to provide him with reasonable accommodation for his disability in relation to getting a job.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 1st of March, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 11th of February, 2016 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 26th of February, 2016. Final correspondence in relation to this complaint was received on the 16th of March, 2016.
2.3 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.
3. Summary of complainant’s case
3.1 The complainant submits that
he was discriminated against, on grounds of disability when the respondent failed to provide him with reasonable accommodation for his disability during the first stage of an application process for the post of Clerical Officer,
he has been diagnosed with Attention Deficit Disorder (ADD) and that he required reasonable accommodation during the competitive application process for the post of Clerical Officer,
he was not provided with accommodation and as a result did not score as highly as he would have if he had been afforded accommodation for his ADD
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant did notify them of his disability prior to his sitting the first stage of the competition for the post of Clerical Officer,
No accommodations were requested and none were granted at the first stage of the competition
5. Disability Ground and Notification of Disability
5.1. It is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
Disability” is defined in Section 2 of the Acts as meaning –
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
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”.
5.2 The complainant advised the hearing that he suffers from Attention Deficit Disorder (ADD) and had been diagnosed with this on the 8th of February, 2014. The respondent accepts that the complainant suffers from a disability and that he notified them of his ADD in his initial application form on 26th of June, 2014. Both parties agreed at the hearing that following receipt of the application form a member of the respondent’s recruitment team phoned the complainant to ask him to submit evidence/confirmation of this disability. The complainant advised the hearing that he had, following this phone call submitted the letter confirming his diagnosis which was dated 14th of February, 2014, to the respondent. The respondent at the hearing agreed that that this letter was submitted by the complainant.
5.3 I am satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015 and that the respondent was aware of the complainant’s disability.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of his disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his job application by failing to provide him with reasonable accommodation for his disability. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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”.
6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.
6.4 Reasonable accommodation
6.4.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[1].
6.4.2 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.
6.4.2 The complainant advised the hearing that he had stated in his initial application form to the respondent that he suffers from Attention Deficit Disorder (ADD) and that he would not require any accommodation for this in the work place but stated that he would ‘need extra time and percentages to be adjusted to take account of this in the exam process’. A copy of the application form was submitted to the hearing, both parties agreed that this was a copy of the application form and that it contained the request for accommodations as outlined. The complainant advised the hearing that he had following submission of his application form received a phone call from a member of the respondent’s recruitment team asking him to submit written evidence/confirmation of this disability. The complainant advised the hearing that he had, following this phone call submitted the letter confirming his diagnosis which was dated 14th of February, 2014 (as it had been prepared for another purpose), to the respondent. The respondent at the hearing agreed that that this letter was submitted by the complainant.
6.4.3 The complainant advised the hearing that he had heard no more from the respondent after submitting the letter of diagnosis from his doctor and stated that he had proceeded to take stage 1 of the Clerical Officer exam on 11th of July, 2014. The complainant stated that upon receiving the results of the exams and the scores awarded to him he had written to the respondent to ascertain what accommodations he had been afforded in the exam process. The complainant stated that the reply he received from the respondent indicated that he had not been afforded any accommodations at Stage 1 of the competition but that he would be afforded the following accommodations if he progressed to Stage 2 :
Breaks, and
Smaller groups for testing
6.4.4 The complainant stated that following Stage 1 and based on the scores he achieved at that Stage he had been placed so far down the list that he was advised that it was doubtful that he would be called to Stage 2. The complainant advised the hearing that it was only on the day before the hearing that he had heard from the respondent that he was to be called to Stage 2.
6.4.5 The complainant advised the hearing that had he been afforded the accommodation of extra time for the exam and or an adjustment in the percentages to allow for his disability at Stage 1 he would have been ranked in a higher position and therefore would have been called to Stage 2 at an earlier time, and may even be established in a Clerical Officer position at this point.
6.4.6 The respondent advised the hearing that the letter from the complainant’s doctor did confirm that the complainant suffered from ADD but stated that the letter did not give any indication as to what if any accommodations would be required for the complainant during the exam process. The respondent advised the hearing that it was very unusual for a letter confirming a disability not to give details of accommodations being requested. The respondent at the hearing also stated that page 8 of the Information Booklet provided to candidates in advance of the competition states what is required of candidates who have special needs. Page 8 states:
Special Needs
"Candidates who indicate on their application that they have special needs will be required to submit a psychologist’s /medical report to PAS. PAS will then make a determination on appropriate accommodations, if any."
6.4.7 The respondent when questioned at the hearing stated that in some cases where a letter confirming a diagnosis has not specified accommodations required or has fallen short of what was required, the respondent has on occasion reverted to the applicant in question seeking further information. The respondent stated that these were dealt with on a case by case basis and depending on the circumstances of each case.
6.4.8 The respondent advised the hearing that given that the letter from the complainant’s doctor did not give adequate information in respect of the accommodations required for the complainant’s condition the respondent made a decision not provide any accommodation at Stage 1 of the exam process. The respondent advised the hearing that it arrived at this decision by looking at what had been done in the past and whether accommodations had previously been provided for people with ADD as well as looking to examples from the private sector and to best practice as a whole for accommodations provided in respect of ADD.
6.4.9 The respondent advised the hearing that it had also looked to the State Examinations Commission and whether or not they provided accommodations for those with ADD and stated that they do not. The complainant disputed this and stated that they had specifically contacted the State Examinations Commission themselves and had been advised that persons with ADD receive accommodations in exams of 10 minutes extra time per hour in exams. The complainant also advised the hearing that they had spoken to the Disabilities Officer in Maynooth College and had been advised that extra time was provided to those with ADD in exam situations. The respondent stated that it had in the past provided extra time to persons with ADD but only where ADD was present in combination with another disorder for example Dyslexia in which case extra time had been afforded.
6.4.10 It is clear from the evidence adduced that the complainant requested accommodation for his disability in his initial application form, it is also clear is that the respondent took a decision not to provide such accommodation based on (a) the fact that the letter of diagnosis submitted by the complainant did not contain any details of accommodations required and (b) the respondent’s research indicated that accommodations had not in the past been provided by them at Stage 1 for those suffering from ADD alone.
6.4.11 The respondent advised the hearing that it had taken a decision not to provide the complainant with accommodation for his ADD at Stage 1 but that it had decided he would be provided with the following accommodations at Stage 2:
Breaks, and
Small Groups
It emerged at the hearing however, that progression to Stage 2 was dependant upon where a person was placed after Stage 1 and that a low placing at Stage 1 would disadvantage an applicant in progressing to Stage 2.
6.4.12 It also emerged at the hearing that the respondent did not contact the complainant again after receiving his letter of diagnosis from his doctor and did not advise him that the letter was inadequate or that it had taken a decision not to afford him any accommodations at Stage 1. The complainant advised the hearing that he proceeded to sit Stage 1 of the exam unaware as to whether or not he was to be granted any accommodations for his ADD.
6.4.13 The respondent in justifying the reasoning for not providing accommodation at Stage 1 advised the hearing that Stage 1 is an online exam taken in the applicant’s own home and thus the environment and the time in which to complete the exams can be controlled by the applicant. The respondent stated that the exam is made up of an initial questionnaire followed by three separate timed exams and that it is open to an applicant to take whatever breaks they wish to take in between exams. The respondent stated that the exam can be completed over a window of 4 days. The complainant advised the hearing that this was not the case and stated that the information booklet provided in advance of the exam specifically states that the exams were to be taken in ‘one sitting’. The relevant extract from the booklet was produced in evidence and the respondent at the hearing conceded that the booklet does state that all exams should be ‘completed in one sitting’ and that it does not indicate that breaks can be taken in between exams. The respondent added that at the beginning of each separate module the applicant must click to start the timer on the exam and so is in control of when the clock starts on the exam but conceded that it is not clear that breaks can be taken in between each exam.
6.4.14 The respondent submitted that, if the complainant had any queries in respect of the Stage 1 exams or in respect of any apparent ambiguity in the documentation provided in advance of the exam, he could have sought clarification with the Respondent by email/phone given the number of days available to sit the said Stage 1 exams. The respondent submits that they cannot be held responsible for the fact that the complainant sat all of the exams sequentially without a break. The respondent in advancing its reasoning as to why no accommodations were granted has submitted that the exams were taken in a home setting and that the complainant could have taken breaks in between tests.
6.4.15 The complainant advised the hearing that he had difficulty in completing all of the exams in one sitting without a break due to his ADD which he stated adversely affects his concentration but that the reason he did sit all of the exams in one sitting was due to the fact that the instruction booklet provided by the respondent instructed him to do so. I am satisfied from the totality of the evidence adduced on this point that the complainant did sit the exams without taking breaks and that he did this due to the instructions provided in the respondent Information Booklet.
6.4.16 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced at pgh 6.4.2 above, it is clear that there was an obligation upon the respondent in this case, in the first instance, to ascertain the level and extent of the complainant’s disability. The respondent in this case upon receipt of an application form indicating that the applicant suffered from ADD and stating that he required accommodation for exams proceeded to request evidence of the diagnosis of ADD from the complainant. This evidence of diagnosis was provided by the complainant in the form of a letter from his doctor. This letter did not refer to accommodations or special measures required. The respondent submits that this letter did not request any accommodations and that a decision was taken by the respondent that no accommodations were necessary in Stage 1 of the exams. One of the reasons provided by the respondent as to why no accommodations were necessary at this stage is that the exams could be sat at home over a number of days. However it is clear from the complainant’s evidence that he completed all of the exams sequentially without a break due to the instruction in the respondent Information Booklet which does state that all exams should be ‘completed in one sitting’.
6.4.17 The respondent also stated that it made a decision that no accommodations were necessary for the complainant as none were requested in the letter from the complainant’s doctor and stated that it looked at best practice and decided that no accommodations were necessary at Stage 1 of the competition. The application form submitted by the complainant indicates that he requested accommodations although such accommodations were not specified in his letter of diagnosis. The respondent gave evidence that it was unusual for the letter of diagnosis not to specify accommodations and stated that it had in the past reverted to applicants where information provided in this regard was not adequate. The respondent in the present case could have reverted to the complainant either to clarify whether and, to what extent, accommodations were being requested by the complainant and/or to clarify that a decision had been made not to provide any accommodations and the reason for such decision. Any such communication would also have clarified for the complainant that he could take breaks in between exams despite what was stated in the Information booklet.
6.4.18 Thus the respondent formed the view that the complainant did not require any accommodations for Stage 1 of the competition without reverting to the complainant to indicate that his letter of diagnosis did not contain sufficient details in respect of accommodations being sought and without advising him that accommodations were not being provided. It was, of course, open to the respondent, to request further documentary evidence from the complainant in order to assess the extent of his disability and to ascertain what if any accommodation he would require in order to participate in stage 1 of the exams. The respondent was obliged to look at suitable measures and accommodation and, if it concluded that there was no necessity for special measures or accommodation, should have advised the complainant that no accommodation was being provided and the reason for same.
6.4.19 Consequently, the complainant, in this case, was not afforded any opportunity to participate in or influence the decision making process that resulted in a decision not to provide him with accommodation or the reasons for such decision. In doing so, the respondent, when faced with a potential employee with a disability failed to carry out the process orientated approach, as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case, but instead made a decision not to accommodate the complainant without any further enquiries or consultation.
6.4.20 Having regard to the foregoing, I am satisfied that the respondent, did not make appropriate enquiries to ascertain the extent of the employees condition and also failed to consult with or advise the complainant before coming to the conclusion that the complainant did not require any special measures or accommodations at Stage 1 of the competition. In the circumstances, I find that the respondent discriminated against the complainant when it failed to provide him with reasonable accommodation for his disability within the meaning of section 16 of those Acts.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
(i) that the respondent discriminated against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts when it failed to provide him with reasonable accommodation for his disability within the meaning of section 16 of those Acts.
7.2 Section 82(1) of the Employment Equality Acts, 1998-2015 sets out the redress which an Adjudicator/Equality Officer can order when a complaint of discrimination is upheld. In considering the redress in this case, I am cognisant of the factthat any award for compensation should be proportionate, effective and dissuasive. In making my award, I am also mindful of the fact that the respondent, in this case, when faced with a situation where an employee indicated that he had been diagnosed with a disability and that he required certain accommodations at Stage 1 of the competition failed to make further inquiries or consult with the complainant in respect of accommodations or special measures required. The respondent in this case also based its decision not to provide accommodations, in part, on the fact that the Stage 1 exams could be taken over a number of days with breaks in between exams, a statement which is contradicted in its own information booklet which states that the exams should be ‘completed in one sitting’.
7.3 Having taken the foregoing matters into consideration in accordance with S. 82 of the Employment Equality Acts 1998 to 2015, I order that
(i) the respondent change the relevant sentence in the information booklet which states that all exams should be ‘completed in one sitting’ to reflect the fact that exams may be taken over a number of days with breaks in between as stated at the hearing, and
(ii) the respondent pay the complainant €5,000 in compensation for the failure to provide him with reasonable accommodation. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and is therefore not subject to tax.
_____________________
Orla Jones
Adjudicator/Equality Officer
19th of April, 2016
Footnotes
[1] [2004] 15 ELR 296
[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)