EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-118
Parties
Mr. Ross Farrell
And
ESB
(Represented by Claire Bruton, BL, instructed by ESB Legal Dept.)
Case Ref: et-159754-ee-15
Date: 12th August 2016
1. Dispute
1.1 The dispute is in relation to 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 so far as there was a failure to provide him with reasonable accommodation in relation to access to employment, contrary to Section 6(3) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 22 September 2015 under Section 77 of the Employment Equality Acts. The Director General of the Workplace Relations Commission delegated the case to me, Joe Donnelly, an Adjudication Officer who was an Equality Officer prior to 1 October 2015, for investigation, hearing and decision and for the exercise of other relevant functions of the Director on 19 May 2016 in accordance with Section 41 of the Workplace Relations Act, 2015, and Part VII of the Employment Equality Acts, 1998 to 2012, 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 7 June 2016.
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 March 2015 the complainant, who has a specific learning disability of dyslexia, applied online for the respondent’s Apprentice Recruitment campaign. The complainant received a response informing him that he was eligible for the next stage of the assessment process. This would be conducted online and candidates were warned that they must complete the tests without assistance. There was a link provided for candidates with special requirements in regard to completing the online assessments.
2.2 The complainant used this link to advise the respondent that he was dyslexic and requested advice. He was informed that his query had been forwarded to the technical team who would shortly contact him.
2.3 After further communication which advised that the assessment process was being carried out by a third party contractor, the complainant received an email asking for specific information in order to ensure that his needs were best accommodated. He replied with the requested information the same day and followed this up the following day, 24 March 2015, with an Educational Psychologist Report.
2.4 On 25 March the complainant was phoned by an employee of the contractor who spoke to him about his requirements. The complainant requested that he be provided with a reader and extra time for the online assessment. The contractor responded by saying that the complainant would receive 50% extra time for one of the component parts of the assessment but did not respond to the request for a reader despite another query from the complainant in this regard. He was furthermore advised that he should log on and that his assessment would commence in half an hour with the adjusted time as discussed.
2.5 The complainant discussed the response with his mother but she felt that if she read for him without having received specific permission to do so that if could lead to automatic disqualification.
2.6 The complainant waited for over an hour without any further communication being received. As the deadline for completion of the assessment was the following day he then commenced the process even though no additional time appeared to have been included. He was extremely stressed and this impacted on his performance.
2.7 The following day an email was received from the contractor to the effect that they could not locate him on the system. The complainant was on work experience and asked his mother to respond. His mother advised the contractor that the complainant had completed the assessment the previous night despite the fact that no extra time appeared to be added. The contractor replied to the effect that his scores would be adjusted before passing them on.
2.8 On 25 June 2015 the complainant was advised that he was not selected for the next stage of the recruitment process. Over the next few weeks he communicated with the respondent in relation to queries that he had in regard to the assessment. On the 15 October 2015 the respondent replied stating that the complainant should have awaited confirmation from the contractor before completing the assessment and that he had received a 25% uplift in two areas of the assessment.
2.9 The complainant had pointed out to the respondent that he had done an assessment for another company which had used the same contractor and in that exercise he had been given 50% extra time for two elements of that assessment along with the facility of a reader.
3. Summary of the Respondent’s Case
3.1 The respondent conducts various recruitment campaigns each year. It is an equal opportunities employer and requests applicants to inform them of any special requirements that they might have.
3.2 The complainant did not seek a specific adjustment from the contractor and was advised that he should have a family member or friend sit and read to him during the test.
3.3 The contractor advised the complainant that he would be allocated extra time to perform the test but was told not to start the test until advised to do so. The complainant completed the test without this advice and the system had not afforded him the extra time agreed. When the contractor became aware of this the next day they arranged that the complainant’s marks in two components of the assessment would be uplifted by 25%.
3.4 The Educational Psychologist Report submitted by the complainant did not state that the complainant needed a reader or that additional time should be afforded. The contractor was proactive in providing reasonable accommodation in this regard.
3.5 The respondent does not consider that its action amount to discrimination nor was there any failure to provide the complainant with reasonable accommodation. Less than one third of the candidates who completed the test progressed to the next stage.
4. Findings and Conclusions of the Adjudication 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…
4.2 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 purposes of deciding to whom employment should be offered
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 It is not disputed that dyslexia is a disability within the meaning of the legislation. In this case the respondent advised prospective candidates to inform them if they required special measures in relation to the assessment procedures and the complainant duly did so. The dispute that arises is in relation to what was agreed in a discussion between the complainant and the contractor operating the process on behalf of the respondent and what later transpired in actuality as regards the operation of the assessment process.
4.5 The person that the complainant spoke to on the day of the assessment and with whom he interacted in the days following was not available to give evidence at the hearing. The only direct evidence that is available therefore is that given by the complainant and his mother.
4.6 I have studied the document provided by the contractor entitled “Best Practice Fact Sheet – Accommodating Candidates with Special Requirements in Online Assessment”. It appears to me to be a comprehensive document which, if followed, would provide, as far as is possible, reasonable accommodation for the specified candidates. The dialogue with the candidate should be carried out by a suitably qualified person and the evidence given by the representative of the contractor was that the employee who spoke with the complainant was both highly qualified and experienced. The Fact Sheet outlines the procedure to be followed. Importantly it starts off by stating: “In order to agree and make a suitable accommodation for a candidate with a disability or special requirement, time is needed.” It then goes through the various stages with suggested questions in order to explore the candidate’s requirements. Stage 4 is specifically about documenting the conversation and agreeing an adjustment. It emphasises that the person speaking with the candidate should record in writing what was discussed and what adjustments are proposed. A copy of this should be sent to the candidate who is asked to reply back that they are happy with the proposal. Depending on the feedback a further conversation may be required. It also states that it is preferable to make the adjustment at the “input” end of the process rather than adjusting a candidate’s scores. There are two references to keeping a copy of the communications with the candidate as “this is important for the audit trail.”
4.7 The evidence of the complainant and his mother is that the process was not lengthy and that there was confusion as to what was going to happen and indeed when it was to happen. The complainant waited for a further 30 minutes after the 30 minutes that he had originally been requested to wait. He was under the impression that the deadline for completing the assessment expired that day. On that basis he proceeded to complete the assessment on his own even though he could see no adjustment to the scores. The respondent, at the hearing stated that there was in fact a further day available to the complainant for the assessment. What is clear, however, is that the procedures laid out in the Fact Sheet were not observed. No email confirming the agreed arrangements for the completion of the assessment had been received by the complainant. No written record exists in this regard and therefore there is no audit trail. The contractor’s representative could not explain why this was so.
4.8 The adjustments of 25% that were provided at the “output” end were described as normal by the representative of the contractor. But the Fact Sheet states that “in our experience adjustments of between 15% and 50% are most common, but this must not be taken as an absolute rule. The conversation with the candidate, as outlined, should always determine the adjustment required.” Bearing in mind that the Educational Psychological Report indicated that the complainant was in the low average range for dyslexia and that the same contractors provided a 50% adjustment in another assessment (albeit for a different client) would suggest that the adjustment provided was not sufficient.
4.9 In evaluating the evidence before me I must first consider whether the complainant has established a prima facie case in accordance with Section 85A 0f the Act. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of sufficient significance before a prima facie case is established and the burden of proof shifts to the respondent.
4.10 I do not accept, for the reasons set out above, that the actual process carried out by the contractor on behalf of the respondent provided the level of reasonable accommodation required by the complainant and as set out in Section 16(3) of the Act.
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. In accordance with Section 82 of the Acts I award the complainant €3,500.00 in compensation for the discrimination suffered.
5.2 As observed earlier, I believe that the procedures set out in the contractor’s Fact Sheet are capable, if correctly implemented, of providing candidates with disabilities with appropriate accommodation. I would therefore recommend that the respondent and contractor liaise in order to ensure that proper training and protocols are put in place to make certain that those procedures are correctly implemented.
5.3 Finally I note the statement of the respondent that the taking of this complaint will have no effect on any future application by the complainant for employment with the respondent.
__________________________
Joe Donnelly
Adjudication Officer/Equality Officer
12th August 2016