DEC-E2016-147

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-147

PARTIES

Anthony Rooney

(Represented by Whitney Moore Solicitors)

Complainant

AND

Interactive Events Ltd

Respondent

File reference: EE/2013/606

Date of issue: 7th November 2016

1. Introduction:

1.1 On the 12th November 2013, the complainant referred a complaint to the Director of the Equality Tribunal relating to discrimination on grounds of disability regarding access to employment. The claimant asserts that his disability is a stammer.

1.2 On the 13th January 2016 and in accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made submissions in advance of the hearing and attended the hearing on the 3rd February 2016. The complainant attended the hearing and was represented by Whitney Moore Solicitors. Two witnesses attended for the respondent.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Submissions and evidence of the complainant:

2.1 The complainant asserts that he was discriminated against on grounds of disability when the respondent withdrew an offer of a role as the seller of scratch cards for a named charity at various public locations. He outlined that following an interview of the 14th June 2013, he was waiting on a further call from the respondent to confirm arrangements for the training day of the 20th June. When he received no telephone call, he rang the respondent on the 19th June. In this call, the HR manager repeated many time that the role involved speaking with the public, to which he replied that he was aware of this. The complainant confirmed that he wished to take up the job. Later, the HR Manager rang the complainant to say that she was unable to offer him a job, to which he replied that she had offered him the role the previous Thursday and could not now withdraw it. The HR Manager replied that she would have to speak to her supervisor. The complainant said that he was upset at how he was being treated. He believed that the HR manager told him that the pay was a flat rate of €40 with no commission, although he accepted that he could have misheard this. He said that everything the HR manager was saying seemed to be trying to get him to change his mind about taking up the role.

2.2 The complainant outlined that after the interview of the 14th June 2013, the HR manager had telephoned him to say that he was being offered a role and that he would be placed outside supermarkets. He outlined that it was his understanding of the role that the seller had to sell as many scratch cards as possible and that he was wanted to take on a role where he interacted with the public. This would help him gain confidence and that he had been doing a role in a warehouse. In reply to the HR manager’s evidence, the complainant said that no alternative training day had been offered to him. Instead, she had asked him on a number of occasions whether he was sure he wanted the role. He outlined that they had discussed the fact that the role involved interaction with the public at the interview, so there was now no need to go over this again. The complainant stated that he could not take up the role after the way he had been treated in the telephone call. This was why he did not answer the telephone calls he received later on the 19th June from the respondent. It was submitted on the complainant’s behalf that there was no way the respondent could not have known of the complainant’s stammer.

2.3 It was submitted that, relying on A Government Department v An Employee (EDA 062), it was for the respondent to show that there had been no discrimination whatsoever on the grounds of disability and that it fell on the employer to provide such cogent evidence. It was submitted that a person with a disability might suffer discrimination not because of the disability per se, but because they are perceived as less capable or dependable, relying on Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 E.L.R. 282.

3. Submissions and evidence of the respondent:

3.1 The respondent denies the claim and states that it could not accommodate the complainant on the originally fixed training day and would have accommodated him on a later training day. It was the complainant who chose not to avail of the offer of employment made to him. The respondent was not aware of the complainant’s disability and he is put on proof of it. It is further submitted that it falls on the complainant to establish a prima facie case of discrimination and the respondent relies on Connacht Gold Cooperative Society v A Worker EDA0822 that it is necessary in such a case for a respondent to have known of a disability. It was submitted that the HR manager’s reference to speaking in public could not amount to a fact of such significance to raise an inference of discrimination. It was further submitted that the respondent had treated the complainant the same as it had all other prospective applicants for roles.

3.2 The HR Manager gave evidence. She outlined that she met the complainant for an interview on the 14th June 2013 where they discussed the nature and payment for the role. She outlined that it involved selling scratch cards for a charity at outdoor public locations, for example at the exits of busy shops. It involved an early start and standing outside for lengthy periods of time, requiring that the seller wear appropriate clothing. The role was a public one where the seller had to interact with members of the public and to smile. The HR Manager outlined that at the time of the interview, payment was commission only and was 30% of sales. During the week of the interview, the respondent changed its method of payment to a flat rate of €40 per day and 25% commission. The sellers were agents and not employees of the respondent.

3.3 The HR Manager outlined that she was in a position to offer the complainant the role and informed him that he would first have to complete a day of training.The complainant was not available for the first dates the HR manager suggested and they provisionally arranged the 20th June. It was also agreed that the complainant would telephone to confirm his availability. The HR manager explained that a training day began in the office and involved taking a maximum of six trainees out to visit sites where sellers were engaged in selling tickets. On the 19th June, the complainant rang the respondent and it was her custom to again go through the details of what the role involved, including the outdoor and public nature of the role as well as the 7.30am start. As the pay arrangement had changed since the interview, the HR Manager explained the revised arrangement to the complainant It was also procedure for the HR manager to ask the prospective employee to confirm their willingness to do the role, to which the complainant replied in the affirmative. After the telephone call ended, the HR manager said that she realised that the training day for the 20th June was full and there was no way she could include the complainant. She had two later dates available and rang the complainant. In this second telephone call, the HR manager went through the nature of the role and the revised nature of payment. She said that she was about to inform him of the later training dates, when the conversation was side tracked and the complainant became upset on the telephone. She decided to end the call by hanging up due the complainant’s tone of voice. The HR manager said that she was not aware that the complainant had a stammer.

3.4 After the end of the telephone call, the HR manager said that she was upset and spoke with the respondent director. She decided to ring the complainant back and made a number of calls in quick succession. She outlined that the job offer had not been withdrawn and that she went through the details of the role with each prospective agent. While she had not mentioned a specific alternative training date, she had said to the complainant that a different date would be available. The HR manager outlined that there had been no evidence of the complainant’s stammer in their conversations and that the telephone call on the 19th June had become difficult, as the complainant was upset. In this call, she had emphasised the characteristics of the role, for example the early start, its outdoor nature and that the seller would be visible to the public, being open, maintaining eye contact and a smile for public. It was put to the HR manager why ask so many questions regarding the speaking in public nature of the role; the HR manager replied that she had said this twice and that it was important to remind new participants of all characteristics of the role, including its public nature. She was sorry that the complainant felt he had been discriminated against and that she had attempted to clarify this in the later telephone calls she made. She asked why would she have tried to make these additional telephone calls if their intention had been to revoke the job offer. The director witness said that why would they have made the job offer to the complainant in the first place if they were to discriminate against him.

4. Findings and reasoning:

4.1 The complaint relates to the events of the 14th and 19th June 2013 when the complainant sought a role as a seller of lottery scratch cards at public locations on behalf of a named charity. The complainant was interviewed for the role and told he was successful in his application. There is then a great deal of conflict of evidence between the parties over what happened on the 19th June 2013. The complainant states that he heard nothing from the respondent and he had to follow up regarding his scheduled start date of the 20th June 2013. He was informed in a later call that he would not be starting. He raises the questions put to him by the respondent on the 19th June and says that they relate to his stammer. He states that the manner in which this telephone call occurred meant that there was no prospect of him ever working in the role. The respondent denies the claim. It states that it was not aware of the complainant’s disability and that it would not prevent him from doing the role. It said that the 20th June training was full and sought to offer the complainant alternative dates. The telephone call on the 19th June was curtailed as the complainant became upset and the respondent was not able to offer him specific training dates. The respondent points to further attempts it made that day to contact the complainant.

4.2 The first issue to address is whether the complainant has a disability within the ambit of the Employment Equality Acts. Section 4 of the Employment Equality Act provides:

‘‘disability’’ means—

(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 t present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”

It goes without saying that I cannot provide a medical diagnosis of the complainant’s speech, nor provide an assessment as would a speech and language therapist. Observing the complainant at the hearing, I find that he has a disability within this statutory definition. While the complainant had periods of fluency, there was also periods of dysfluency, in particular at the start of statements or when he encountered certain sounds. Given the extent of the stammer, I also find that the respondent was aware of the complainant’s stammer in June 2013. There was no submission that the complainant’s fluency at the hearing was any different to when these events occurred.

4.3 As noted above, there is signficant conflict between the parties of what was said and its meaning in the second telephone call of the 19th June 2013. According to the respondent’s submission, this took place at 14.53 hrs. Having considered the evidence of the parties, in particular the oral evidence, I find the conversation ensued largely as portrayed by the complainant. I reach this finding for the following reasons. There was conflict between the parties as to what was to happen between the date of the interview and the scheduled day for the complainant to commence. I do not place weight on whether it was agreed that the respondent would confirm details, or was it for the complainant to confirm arrangements. What is of significance is what occurred between the first and second telephone calls of the 19th June. After the first call, it was agreed that the complainant would start the following morning. In the second call, the respondent indicated that this could not happen because the training group for the 20th June was already full. If, however, it was just a matter of scheduling, this is what the respondent would have said at the very start of the second call of the 19th June. While there is a conflict over how much time was spent in the second call on the characteristics of the role, in particular relating to addressing the public, it was agreed that the call touched on other issues before it could address any possible alternative date. This leads me to find for the complainant in the substance of the claim. If the second call was about agreeing an alternative date, one would expect the call to have addressed this issue within seconds, without any reference to the characteristics of the role.

4.4 Based on the above finding of fact, I find that the respondent discriminated against the complainant in withdrawing the offer of the role of the lottery ticket salesperson. The respondent asks why would they have made the offer at all if they intended to discriminate. I address this by concluding that what occurred was in and around this time, the respondent received many expressions of interest from prospective sales persons, so that by the 19th June, it had other sales persons to train and to put in the field. As submitted by the complainant, the Labour Court held in A Government Department v An Employee that discrimination on grounds of disability might not relate to the disability per se, but a perception that an employee is less capable of doing the role than others.

4.5 In assessing redress, I take account that this is an access to employment case where the complainant was to start his first day in a wearing role, where one stands in the same location for many hours. I appreciate that the complainant looked to this role to gain confidence in replying to enquiries from members to the public regarding the lottery and its associated charity. Taking these factors into account, I find that the respondent shall pay to the complainant €800 in redress.

5. Decision:

5.1 The respondent herein discriminated against the complainant on the disability ground in terms of section 6(2)(g) and contrary to section 8 of the Act. I determine that the appropriate redress is an award of compensation and that the respondent shall pay €800 to the complainant in compensation for the effects of discrimination. The entire 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).

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

7th November 2016