DEC-E2016-044

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-044

PARTIES

An Applicant for Employment

AND

A Youth Organisation

(Represented by IBEC)

File Reference: EE/2013/512

Date of Issue: 10th March 2016

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) and Section 8(1)(a) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) in relation to his non-selection for interview/employment.

1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 1st October 2013. On 2nd September 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication/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 9th September 2015. The Complainant represented himself and IBEC represented the Respondent. The Respondent’s CEO and a number of witnesses attended to give evidence on its behalf. All written and oral evidence and submissions presented 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 key statutory provisions and relevant case law in my consideration of this matter.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83 of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

2.1 The Complainant was born with one hand and there is no issue that he has a disability within the meaning of the Acts. His disability has never impeded him in life and he has an impressive record of prior achievements including a First Dan (Black Belt) in Judo. Although personal circumstances have not allowed the Complainant an opportunity to obtain third level qualifications, over the years he has built up an extensive list of other qualifications and skills relevant to the work of the Respondent.

2.2 The Complainant was employed by the Respondent as one of two part-time Group Support Facilitators in one of the Provinces from 2008-2011. In 2010, the Respondent’s Board of Management decided to merge these two roles into one full-time position. In 2010, the Complainant applied for and was interviewed for the new position of full-time Group Support Facilitator for the same region along with the other part-time holder. His disability had never hindered him in undertaking this role although he submitted that he was the brunt of occasional jokes. He had an excellent work record and believed that he was the most suitable of the two candidates for the position in question, and so felt it very unfair when he was not selected. When his existing contract came to an end in 2011, he continued to work for the Respondent in a voluntary capacity. He submitted that in or around the same time, an employee of a different race had also been made redundant as indicative of the Respondent’s discriminatory attitude.

2.3 In 2012, two paid full-time positions with the Respondent became available in one of the Provinces for a Group Support Facilitator and a Provisional Support Officer. Although the job description stated that applicants from a particular region were preferred, the Complainant who lived in a different region had indicated his willingness to move. He applied for both positions but received a letter dated 20th September 2012 from the Respondent’s CEO confirming that he had not been short-listed for interview in respect of either position stating: “I regret to inform you that you have not been shortlisted for interview for the above vacancy, as other candidates more closely matched the skills and experience we were seeking for the appointment.” By emails dated 9th October 2012 and 25th October 2012, the Complainant wrote to the CEO requesting the selection criteria used along with any additional notes in order to understand the reasons why he was not shortlisted for interview but did not receive a response.

2.4 In early 2013, another paid position for a Group Support Facilitator with the Respondent became available in the Province where the Complainant resided, also being the same area where he had worked previously. Believing that he was well positioned to undertake this role, he applied for this position. He was shocked when he received a letter dated 3rd April 2013 from the Respondent’s CEO, using identical wording to the previous refusals confirming that yet again, he had not been short-listed for interview.

2.5 The Complainant proffered a number of reasons as to why he believed he had not been selected for any of the aforementioned positions including discrimination on the grounds of disability and an unfair recruitment and selection process. He also surmised that historic inter-personal differences could have militated against him. In particular, he stated: “I feel that having been born with one hand, [the Respondent]did not view me as fitting the mould, being the only person at the time with a disability.” Both the 2012 and 2013 competitions required candidates to have: “A 3rd level qualification in a relevant discipline or have the equivalent professional experience to efficiently discharge the functions of the appointment.” Despite not having any third level qualifications, the Complainant felt that given his extensive prior experience with the Respondent, he was more than qualified for the positions in question and should have at least been offered an interview. He also felt that the absence of a response to his request for the selection criteria relied upon in shortlisting the candidates for interview was further evidence of an unfair process. Overall, he felt that he had been overlooked by the Respondent in relation to the positions in question owing to his disability and therefore he was discriminated against by the Respondent in relation to access to employment on the grounds of disability contrary to the Acts.

2.6 In response to questions from the Respondent’s Representative, the Complainant accepted that he had not made any internal complaint to the Respondent in respect of any alleged discriminatory treatment but alluded to the fact that there had been no response to his two requests for the selection criteria. It was further put to him that he was being overly sensitive in relation to his disability which had not been the reason for the Respondent’s decision not to shortlist him for interview or recruit him for the positions in question. The Respondent had enclosed copies of the short-listing matrixes for the 2012 and 2013 competitions under the various selection criteria which were put to the Complainant as evidence that the candidates who were shortlisted scored higher against the pre-determined objective selection criteria.

3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE

3.1 The Respondent is a national association for young people with charitable status. It mainly depends on volunteers for its
operation and has a small number of paid positions. The Respondent strenuously denied that the Complainant had been subject to any discriminatory treatment either directly or indirectly or that any discriminatory treatment took place on the grounds of disability or otherwise. The Respondent’s Constitution confirms that it is independent and nonpolitical and open to all without distinction of origin, race, creed, gender, sexual orientation or ability. The Respondent is very active in relation to a number of equality, diversity and inclusiveness policies and initiatives.

3.2 .No issue is taken with the Complainant’s chronology of employment and job applications with the Respondent as outlined above. The CEO and a member of all of the selection panels in question gave evidence in relation to the procedures adopted for selecting applicants for the various positions as follows: In relation to the 2010 position of Group Support Facilitator, it was confirmed that whilst closely matched, the successful candidate performed better at interview. A question that had been crossed out was crossed out in respect of both candidates. It was coincidental that an employee of a different race had been made redundant at around the same time. In relation to the 2012 position of Group Support Facilitator, there were 14 applicants including the Complainant of which 5 were shortlisted. In relation to 2012 position of Provisional Support Officer, there were 12 applicants including the Complainant of which 6 were shortlisted. The composition of the selection panel was transparent. Up to 12 different predetermined criteria including ‘third level qualifications or equivalent professional experience’ was used to shortlist applicants for both roles. A copy of the selection criteria and shortlisting matrixes was submitted into evidence. These were applied fairly and equally to all candidates. The standard of applications received for the positions in question was exceptionally high owing to the recession. This made the process of shortlisting prior to interview more competitive resulting in good candidates not being shortlisted simply due to the sheer number of highly qualified individuals applying. The Complainant did not meet some of the criteria and was not shortlisted for interview as other candidates more closely matched the skills and experience required. He was not the only applicant to apply for both roles and nor was he the only applicant not to be shortlisted.

3.3 In relation to the 2013 position of Group Support Facilitator, there were 9 applicants including the Complainant, in respect of which 5 were short-listed for interview. The Complainant was not shortlisted, as again there were more qualified candidates who better matched the selection criteria. The CEO gave evidence of using similar predetermined criteria to that used for the 2012 positions for shortlisting the applicants for this position, which again included third level qualifications or equivalent professional experience, and submitted a copy of the selection criteria and shortlisting matrixes into evidence. Again these were applied fairly and equally to all candidates. Again the Complainant did not meet some of the criteria and was not shortlisted for interview as other candidates more closely matched the skills and experience required. A common thread between the various matrixes was the fact that the Complainant did not score in relation to the ‘third level qualifications or equivalent professional experience’ criterion.

3.4 Furthermore it was submitted that as the Respondent has no record of any historic inter-personal differences, this could not have influenced the recruitment process, and in any event would not constitute a discriminatory act. The fact that the same phraseology had been used in the letters to the Complainant confirming that he had not been shortlisted for interview in respect of both the 2012 and 2013 applications was not in any way discriminatory, being a standard clause regularly included in recruitment letters to unsuccessful candidates. The same letters would have been sent to all of the unsuccessful candidates for the posts in question. Contradictions within the Complainant’s evidence were highlighted i.e. he stated that he had been on the receiving end of jokes relating to his disability whilst conversely stating: “I only received praise and support from those I worked with”. It was confirmed that the Respondent does not have any record of alleged incidents of discriminatory comments being made to the Complainant during his previous employment nor did he make any such complaints. Finally it was submitted the fact that the Respondent had employed the Complainant previously, is indicative that his disability was not a factor in their consideration of his applications for the latter positions.

3.5 The Complainant was afforded an opportunity to question the CEO and a member of the interviewing panels for the various competitions which did not yield any additional information in support of his contentions. The CEO for the Respondent expressed regret that it had not been in a position to offer the Complainant a further paid position. He conceded that he could have communicated better with the Complainant and provided him with post-interview feedback. He also confirmed that the Respondent greatly valued the Complainant’s ongoing voluntary work and hoped that this claim would not alter this.

3.6 Overall, the Respondent contends that the recruitment process in relation to all of the positions complained of was open and transparent, appropriate and reasonable and the Complainant was not treated any differently from anyone else. He has not disclosed a prima facie case of discrimination on the grounds of disability in relation to his non-selection for interview/employment as required by the Employment Equality Acts. In this respect, the Respondent relies on the well-known tests in Southern Health Board -v- Mitchell DEE011 and Melbury Developments Ltd -v- Valpeters EDA0917.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issue for decision is whether or not the Complainant was discriminated against by the Respondent on the grounds of disability in relation to his non-selection for interview and/or recruitment for the positions applied for, and if so, what instances fall within the requisite time limits. Section 8(1)(a) of the Acts prohibits discrimination of prospective employees in relation to access to employment on any of the nine discriminatory grounds including disability in the instant case contrary to Section 6(2)(g).

4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. As elucidated in the aforesaid case law, 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, the role of the Tribunal (now WRC) includes undertaking an examination of any conflicts in the evidence presented by the Parties to arrive at reasoned findings of fact.

4.3 The Complainant was notified of his last non-selection for interview on 3rd April 2013 and as such, this is the only complaint submitted within the requisite six month time-limit under Section 77 of the Acts, his complaint form being received on 1st October 2013. The three other instances of non-selection complained of, the last of which was notified to the Complainant on 20th September 2012, were outside any possible extension of time up to 12 months for reasonable cause. As there was no objection from the Respondent or prejudice in terms of dealing with all of the instances of non-selection complained of, coupled with the Complainant’s history of employment with the Respondent and the proximity of the 2012 and 2013 non-selections, I indicated that I would hear all of the evidence on the basis that the earlier non-selections may be of probative value and/or if the 2013 non-selection was successful, I could then consider whether they constituted a continuum of discrimination within the meaning of Section 77.

4.4 Unlawful discrimination in any circumstances and particularly in relation to a recruitment process is rarely overt and may not even be intentional but merely based on an assumption that a candidate would not have fitted into a particular role. Recognising the difficulties in proving discrimination, the UK House of Lords set out guidance in Glasgow City Council -v- Zafar (1998) 2 All ER 953 as adopted by the Irish Courts and employment fora including: “At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.'” Therefore, the Complainant must establish a factual matrix from which it can be inferred that discrimination has occurred on the balance of probabilities. The fact that the Respondent had knowledge of the Complainant’s disability and did not short-list him for interview and/or recruit him is not sufficient in itself to constitute a prima facie case of discrimination.

4.5 In this respect, I am guided by the Labour Court in Client Logic t/a UCAL -v- Kulwant Gill EDA0817 where it held that "…in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". Having examined the various selection criteria and shortlisting matrixes coupled with the evidence proffered on behalf of the Respondent in relation to all of the non-selections complained of, I am satisfied on the balance of probabilities that there is no clear evidence of unfairness or manifest irrationality in relation to the non-selections complained of and particularly based on the following findings of fact:

· No issue was taken with the composition of the various selection panels. There was no evidence of any connection between any alleged discriminatory comments and the selectors in question.

· There is no obvious irrationality in relation to the pre-determined criteria for the 2012 and 2013 posts which appear to match the competencies required. Even factoring in the Complainant’s disagreement with his scoring under some of the criteria, overall, the candidates short-listed ahead of him better matched the selection criteria for the positions in question. It is apparent from the various matrixes that his lack of third-level or equivalent professional experience was the main factor for his non-selection when compared with the short-listed candidates.

· I also find that having previously employed the Complainant in a paid position without there being any issue as to his capability, the Respondent was not in any way influenced by his disability.

4.6 Having successfully worked for the Respondent as a paid employee in the past and having continued to work as a volunteer building up considerable relevant experience, the Complainant’s disappointment and frustration at his repeated unsuccessful applications for further paid work with the Respondent is totally understandable. Had the Respondent been more proactive in terms of offering feedback to the Complainant when requested it is unlikely that this claim would have arisen, and in this respect the Respondent might consider offering feedback to unsuccessful candidates in future competitions.

5. DECISION

5.1 I have concluded my investigation of this complaint and based on the aforementioned, find that pursuant to Section 79(6) of the Act, the Complainant has not established a prima facie case of discrimination on the grounds of disability contrary to Section 6(2)(g) and Section 8(1)(a) of the Employment Equality Acts in relation to his non-selection for interview and/or recruitment for the positions in question. Therefore no onus shifts to the Respondent to rebut any inference and this complaint must fail. Having so found, it is unnecessary for me to consider the issue of the applicable time limits any further.

5.2 Given the sensitivities in this case, I have exercised my discretion to anonymise this decision.

____________________

Aideen Collard

Adjudication / Equality Officer

10th March 2016