EDA1724

At the hearing of the Court the Appellant clarified that the decision of the Adjudication Officer as regards a complaint of victimisation and as regards appointment to the Detail Office or payments associated therewith was not being contested on appeal before the Court. He clarified to the Court that his Appeal related only to the conduct of a process for appointment of a Staff Support Officer (SSO) in 2012.

The process for appointment of an SSO included an interview on 12^thDecember 2012 wherein the Appellant was interviewed as regards his proficiency under eight competencies. The Appellant received 256 marks at that interview out of a possible 450. The pass mark at interview was 300.

At the hearing of the Court the Appellant clarified that his complaint related only to the failure of the IPS to appoint him to the role of SSO arising from the interview on 12^thDecember 2012.

Summary position of the Appellant

The Appellant submitted that he had made comments at the interview on 12^thDecember 2012 as regards the Respondent’s policy not to recognise work related stress arising from incidents at work as Injury on Duty.

He submitted that he subsequently sought and received copies of the interview notes of the Respondent’s Interview Board. The Appellant submitted that those notes recorded two written comments of members of the interview board as follows

‘went into areas not concerned with the role of SSO’

and

‘went off on tangent about IPS on stress related issues’

The Appellant submitted copies of those Interview Board notes to the Court. The Appellant contended that the notes of the Board demonstrated that he had been adversely affected by his raising of issues regarding the Respondent’s policy on work related stress and contended that this adverse effect was of sufficient magnitude as to cause him to score insufficiently highly to be appointed as an SSO.

The Appellant advised the Court that he did not discuss his own historical experience of disability with the Interview Board and he stated that he had no reason to believe that the members of the Interview Board were aware of his previous disability.

Summary position of the Respondent

The Respondent submitted that the Appellant had failed to identify an appropriate comparator for the purposes of the Acts and had failed to outline any circumstance in which he had been subject to less favourable treatment on grounds of his alleged disability.

The Respondent submitted that the Appellant had been judged against criteria set out in the circular advertising the position of SSO and that he was not placed on the panel for appointment because of his failure to achieve the required marks and failure to fulfil the required competencies for the position of SSO. The Respondent asserted that no issues in relation to any disability allegedly suffered by the Appellant were considered in the course of reaching a conclusion on his application.

The Respondent submitted that the Court had no role in the within case in reviewing the merits of a decision of the Respondent’s Interview Board.

Discussion and conclusions

Section 85A(1) of the Acts provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “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.”

• “The first requirement 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 is no infringement of the principle of equal treatment.”

• “…Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”

The Appellant has contended that notes taken at interview by two interviewers are evidence of discrimination. The Court heard no evidence from the authors of those notes. However, the Appellant has submitted to the Court that he addressed at his interview the IPS policy as regards treating stress arising from incidents at work as an injury at work. The Appellant asserted that his raising of this issue negatively affected his assessment by the Interview Board and contended that the failure of the IPS to appoint him as an SSO was a consequence of that, and that this amounted to unlawful discrimination on grounds of disability within the meaning of the Act.

The Appellant asserted that his knowledge of the subject of stress arising from incidents at work derives from his own experience of such stress. He does not assert however that the Interview Board had any knowledge of his historical experience of stress or indeed took his experience of stress into account in making their decisions as regards marking of the Appellant’s competencies.

He contends that, arising from his raising and discussing the matter of the Respondent’s policy as regards stress arising from incidents at work, the Interview Board marked him adversely when scoring his interview performance under a range of competency headings.

It is for the Court only to address the contention that the Respondent discriminated against the Appellant on the grounds specified in his complaint of unlawful discrimination based on the disability of the Appellant. The Court has been offered no cogent evidence or submission to support the Appellant’s contentions in this regard. It cannot be accepted that any consequences which could be alleged to flow from the raising by the Appellant of the subject of the Respondent’s policy as regards stress at work can equate to an adverse effect on the Appellant arising from his own historical experience of disability.

The Appellant has not established facts from which it could be inferred that his historical disability was in any sense a factor in the decision to score him insufficiently highly at interview to result in his appointment to the role of SSO.

The Court must therefore conclude that the Appellant has failed to discharge the burden of proof which rests upon him to establish a prima facie case of discrimination contrary to the Act in relation to any of the events he set out to the Court as constituting discrimination on the ground of disability.

Determination

The Court has been given no basis to infer that any decision of the Interview Board was affected, influenced or otherwise tainted by the fact that the Appellant had at one time suffered from a disability. In those circumstances the Court must conclude that the Appellant has not succeeded in making out a complaint of discrimination within the meaning of the Act.

The decision of the Adjudication Officer, for the reasons stated above, is affirmed and the appeal fails.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
24 July 2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.