EDA1613

FULL RECOMMENDATION ADE/16/15 DETERMINATIONNO.EDA1613 DEC-E2015-158 INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : DEPARTMENT OF HEALTH (REPRESENTED BY CHIEF STATE SOLICITOR'S OFFICE) - AND - GERARD MAGUIRE (REPRESENTED BY PSEU) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms O'Donnell

SUBJECT:
1. Appeal under Section 83 of the Employment Equality Acts 1998 to 2011.



BACKGROUND:

2. This is an appeal by a Worker (the Appellant) against the decision of an Equality Officer / Adjudication Officer in a complaint made against his employer, a Government Department (the Respondent) that he was discriminated against on ground of disability in terms of Section 6(2)(g) of the Employment Equality Acts 1998 to 2015 (the Act). A Labour Court hearing took place on 27 May 2016.

The complaint was made on 12^thSeptember 2014. The Equality Officer / Adjudication Officer, pursuant to Section 79(6) of the Act, found that the Respondent had not discriminated against the Appellant within the meaning of the Act.

DETERMINATION:

The case

The Respondent, on 2^ndMay 2015, advertised a secondment position with the Hepatitis C and HIV Compensation Tribunal (the Tribunal). The position was advertised to staff on a 50% to 60% work sharing pattern. The position was not a promotion.

There were no responses by way of application to the advertisement of 2^ndMay 2015. The Respondent advertised the position again on 9^thJune 2015 and three persons, including the Appellant, responded to the advertisement expressing interest.

The Tribunal was at all material times located in a building which was not accessible to wheelchair users. The Appellant is a wheelchair user.

The Appellant was written to by the Respondent on 27^thJune 2015. The Respondent informed the Appellant in that letter that more than one expression of interest had been received and as a consequence selection for the position would be based ‘largely on seniority / suitability’. The letter stated that a meeting was to be arranged between the Appellant and a representative of the Tribunal and the HR Unit of the Respondent. The Appellant was requested to supply a CV which would provide a ‘rough outline’ of career history. The letter also informed the Appellant that the meeting would not be a formal interview but rather it would be ‘merely an informal exchange of information’.

A meeting subsequently took place on 24^thJuly 2014. The Appellant was advised on 15^thAugust 2014 that another applicant had been successful in securing the assignment.

Position of the Appellant

The Appellant stated to the Court that had he been successful in his application for assignment to the Tribunal his work would have been based in a building which was not accessible to him as a wheelchair user. The Appellant contended that the inaccessibility of the premises demonstrated a mind-set of the Respondent at odds with its own published policy as regards Disability.

The Appellant contended that the Respondent conducted a selection process which was not to a standard necessary to ensure that the most suitable candidate was selected for the post. The Appellant contended that the Respondent maintained no interview notes nor did it use any marking or ranking scheme. The Appellant stated that the process employed confirmed the suitability of all applicants and that the appointment was then made on the basis of seniority.

The Appellant contended that the Respondent conducted what was in effect a competitive process of selection. The Appellant contended that the Respondent, in the absence of any notes or records from the interview process, had produced no evidence to demonstrate that the Respondent was not influenced, even subconsciously, inadvertently or unintentionally by the accessibility issues which would arise were the Appellant to be appointed to the position.

Position of the Respondent.

The Respondent accepted that the building which housed the Tribunal at all material times was not accessible to a wheelchair user. The Respondent stated to the Court that were the Appellant to be successful in his application for assignment to the Tribunal access would have been made available to the Appellant.

The Respondent contended to the Court that the selection process employed was not a competitive one. The Respondent stated that the process involved meeting with three applicants to determine their suitability for assignment to the Tribunal. The Respondent stated that all three applicants were successful in demonstrating their suitability for assignment. The Respondent stated that no part of the process of determining suitability for assignment involved a ranking or order of merit type process. The Respondent stated that the decision as regards assignment of suitable applicants was to be made and was in fact made on the basis of seniority. The Respondent stated that this methodology of assignment is used by the Respondent when assignment to special posts is at issue. The Respondent stated that this informal process is used when an assignment to a location in a different building arises and that a purpose of engaging such a process is to give staff a choice as to where they wish to be assigned.

The Respondent stated that no feature of the process of selection demonstrated discrimination in the manner contended by the Appellant.

Discussion

There is agreement between the parties that the Appellant suffers from a disability within the meaning of the Act. The Appellant is a wheelchair user. The parties are agreed that the premises of the Tribunal are not accessible to wheelchair users.

Section 85A (1) of the Act provides as follolws

• 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

This Court has considered in Southern Health Board v Mitchell [DEE011] the extent of the evidential burden which a claimant must meet in establishing the primary facts from which a presumption of discrimination can be raised. The Court held as follows

• ‘The first requirement of Article 4 of the Directive is that the claimant must "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
  • It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.’

In the instant case the Court is satisfied that the Appellant’s disability and the inaccessibility of the Tribunal’s premises are facts of such significance as to raise the presumption of discrimination within the meaning of Section 85A(1) of the Act. It is therefore for the Respondent to prove to the Court that discrimination has not taken place.

The Respondent, in evidence to the Court, confirmed that no notes or other contemporaneous written record of the meeting between the Appellant and the representatives of the Respondent and the Tribunal were taken or exist. The Representative of the Tribunal who attended that meeting did confirm however to the Court that no part of the process associated with the meeting of 24^th July 2014 involved the ranking of applicants in terms of their suitability. The representative of the Tribunal confirmed in evidence to the Court that all three applicants successfully established their suitability for assignment to the Tribunal.

The Court accepts the evidence of the Respondent that no ranking of candidates’ suitability for assignment was undertaken. Indeed the Appellant in his submission to the Court appears to accept this as a fact also.

In all of the circumstances the Court believes that there can be no reasonable conclusion drawn that the meeting of 24^th July 2014 was discriminatory in its conduct or outcome. All three applicants were deemed suitable for assignment and to that degree the meeting of 24^th July resulted in no differential outcome for any candidate. The Court notes with concern the absence of any written record of the meeting of 24^th July but, on the facts of the instant case, cannot accept that the absence of such a record is fatal to the Respondent’s rebuttal of the presumption of discrimination.

The final phase of the selection process was the application of seniority and the assignment of the most senior applicant. There is no dispute that the applicant ultimately assigned was more senior that the Appellant. The Court cannot accept, on the facts of the instant case, that the assignment of the applicant with most seniority was a discrimination against the Appellant on the ground of disability within the meaning of Section 6(2)(g) of the Act. The Court therefore finds that the Respondent has rebutted the presumption of discrimination in the instant case.

Determination

For the reasons stated above the Court determines that the Respondent did not discriminate against the Appellant on the ground of his disability. The decision of the Equality Officer / Adjudication Officer is accordingly affirmed.

Signed on behalf of the Labour Court



Kevin Foley
20 June 2016______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.