ADJ-00004761

Complainant

Respondent

Parties

A Prospective Employee

A Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00006452-001

14/08/2016

The Complainant referred this complaint to the Workplace Relations Commission on 14 August 2016.In accordance with her powers under Section 75 of the Employment Equality Acts, the Director General on 31 January 2017 delegated the case to me, an Equality /Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts .This is the date on which I commenced my investigation.

A written submission was received from the complainant and as required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on 8 March 2017. The respondent was requested to submit some additional details post the hearing and these were received and exchanged with the complainant for commentary .Final correspondence was received on 29 March 2017.

As this case was heard before the most recent WRC direction on naming parties in Employment Equality Cases, I have used my discretion and anonymised the parties for the purposes of this decision as I did not have an opportunity to canvas their views on this recent development at the time of the hearing.

The Complainant contends that he was discriminated against by a Prospective Employer on grounds of disability and in relation to getting a job. He submitted that the most recent date of discrimination was 11 March 2016. The Complainant stated that he is both dyslexic and Autistic, having been diagnosed with Asperger’s Syndrome in 2013.

He gave an outline of his case that on March 4, 2016, he submitted his CV in response to a Vacancy for a Supervisor position with the Respondent. He currently works as a Supervisor on an Environmental Scheme. On March 14, two days before the interview for the position, the respondent reverted to him by informing him that he had been unsuccessful in his application for the position and had not been shortlisted for interview, “due to the large number of applicants with sector specific knowledge and experience”.

The Complainant was shocked as he considered he possessed the relevant experience in the role, in addition to his continuing Professional Development. He submitted that he had been the youngest Supervisor in the country when he was first appointed in 1996.

He made inquiries and received a phone call from the Respondent on 22 March, 2016. The respondent explained that the “short listing “task had been split between himself and the newly appointed Financial Controller. The complainant was informed that there had been a mistake made in the marking of his application resulting in 28 marks (20 points for his degree and 8 points for the ECDL) being omitted from his final score. This resulted in him not being called for interview.

The Respondent informed him that he had not seen his C.V and the mistake had been solely that of the Financial Controller .He offered to meet with the complainant in the company of the Financial Controller and mentioned that the position had been offered and accepted by a Candidate on the same day that the Interviews were held .The complainant declined the meeting.

The Complainant followed up the matter with the respondent on 8 August, seeking clarification whether there had been a change of Director at the company? He was informed that the Financial Controller and not a Lay Treasurer had made the mistake on the calculation of his marks for the position of Supervisor .He was not prepared to accept that a trained accountant hired to oversee the finances of a high turnover company would make such a simple mistake .The complainant sought an investigation under Equality Legislation to ensure that the disability disclosed on his CV was not a factor in his non selection for interview.

The complainant identified that there were a number of discrepancies in the marking system. He received a copy of the CV marking system after the position was filled, which confirmed that his marks were wrongly calculated .The complainant forwarded an EE2 form to the respondent in September 2016.

He sought a response to the questions :

1. Of the total of 40 applicants, how many had a disability?
2. How many applicants called for interview had a disability?
3. What training did the short listers posess in relation to their obligations under the Employment Equality Acts?

4         Explanation for discrepancies between marks allocated on the complainants CV and the marking sheet?

5         How many members of staff with a disability, in the respondent Organisation hold positions of authority/management?

The Respondent furnished the response to EE2 to the WRC on 28 October 2016.

1. The respondent did not know the answer and stated that “ neither the respondent nor the applicants themselves ( except the complainant ) raised the issue of whether applicants had or did not have a disability “
2. The Respondent did not know the answer.
3. The staffs involved were considered to have the appropriate experience to review and mark applications, what followed in the error made in the complainants case was a human error.
4. Certain things were written on the CV at the time of the marking and later at the time of the review. This may be why the discrepancies appear.
5. A copy of the original marking sheets with redacted names was provided.
6. Both a Co-ordinator and a Manager have disabilities .Two retired senior managers also had disabilities.

The Complainant submitted that there was a clear discrepancy between the 70 marks recorded for him on the scoresheet of the shortlisting process and the final review sheet where he was recorded as having scored 83.

The complainant contended that the exclusion at shortlisting stage made him feel “less than what I am “.He named his cited comparator as every other person who did not have a disability. He believed that he was doing the right thing by mentioning his disability on his CV and did not anticipate the “ jaundiced “ view taken of his application by the respondent .He was very keen to be considered for the position .He raised this issue before the WRC as he did not want this to happen to anyone else .

The Complainant welcomed sight of the Respondent Recruitment Policy and Procedure effective from August 2016 and expressed a regret that it was not in existence sooner.

The Respondent disputed the claim and submitted that “ human error “ was at the heart of the matter .The Respondent , a charity working in the Disability sector under Service Level Agreement , advertised for the position of a Community Employment Supervisor in March 2016 .Approximately 40 applications were received for the position and candidates were selected for interview according to A CV Marking Scorecard .Unsuccessful candidates were written to informing them that they would not be called for interview .Four applicants were interviewed and the position was filled once the interviews were completed .

The complainant contacted the Respondents CEO subsequent to the position being filled, to express surprise at not being called to interview. At this point, his application was reviewed to discover that he had been incorrectly scored on the marking sheet.

The Respondent submitted that had the complainant been marked correctly , he should have been called for interview .The Respondent confirmed that information on the cover letter had not been taken into consideration for the overall score ,and the CV was the sole informant for the final score ,which was below the level required for interview .The respondent reached out to the complainant by explaining the mistake and apologised .The Respondent offered to go and meet with the complainant but were informed that it was not necessary.

The Respondent submitted that the error made was not intentional, nor was it linked to the complainant’s disability. The Respondent had a strong ethos to empower and enable people with disabilities.

The CEO told the hearing that there was a strong culture and ethos of support for disability in the organisation, this was necessary to offer an empathetic service. The Organisation liked to recruit candidates with disabilities and had a positive record in that regard .

The Organisation shortlisted on March 9, 2016. This involved both the CEO and The Financial Controller dividing the CVs and marking them over a 2 hour period. The Respondent confirmed that they raced through them and placed the marks on a final result sheet.

The Respondent acknowledged that the complainant was “dead right” to query his result .The Respondent had not progressed to the paragraph in the complainants CV where he mentioned his dyslexia and Autism (Asperger’s Syndrome) and this was the human error. The Organisation did not seek to exclude the complainant.

The Respondent submitted that the Hiring process had now altered at the Organisation and three people now preside over the entire process. The Respondent submitted the Organisation Equal Opportunities policy shortly after the hearing and the Complainant made supplementary comments.

The Respondent submitted that the Organisation had reflected on the events as presented by the complainant, had apologised for the errors and offered to meet with the complainant, but re-affirmed that he had not been discriminated. The position had been filled for one year period that they hoped to renew.

In reaching my decision, I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.

The Law :

Section 2 of the Employment Equality Acts 1998 -     provides a definition for disability under the Acts  

“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 at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

This is a broad definition of disability and based on the evidence adduced at the hearing in addition to the submissions raised, I find that the complainant did have a disability in accordance with Section 2(d) of the Act.

Section 8(1) of the Act provides that in relation to employment “an employer shall not discriminate against an employee or prospective employee”. I accept that the complainant was a prospective employee at the time in question.

 In Arturs Valpeters v Melbury Developments [2010] E.L.R. 64, the Labour Court identified the parameters of the burden of proof necessary in employment equality cases.

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the 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.”

This case concerns a phase of pre-employment surrounding the competition for a Community Employment Scheme Supervisor .It is not my role to decide on the highest ranking candidate, but rather to ascertain whether the selection process for the position was tainted by unlawful discrimination?

I considered the original advertisement shared in submissions and I noted that the respondent was faced with a very narrow window of time in which to fill this position. Funding had been secured and a deadline was in place. The position was advertised on March 4, 2016 with a closing date of March 7, 2016 .I found that the whole approach to the selection process was underpinned by undue haste by the respondent. Coupled with this, there had been a new appointment at Financial Controller level and the respondent acknowledged the pressure the organisation was under to fill the instant position.

On the complainants’ submissions, I accept that he volunteered the reference to being both dyslexic and intellectually gifted in his personal statement on the final page of his CV submitted for the competition .He acknowledged that it was not something he was asked to volunteer, rather, he acted pro actively.

I probed the marking system which led to the short listing and found a number of items which I had difficulty with in terms of reviewing for a consistent approach.

There were a number of erasures and revisions inserted on the final marking sheet which caused me concern .This was a clear record of some sort of validation or correctional process to reflect the changes made for the candidates who scored

1 75 marks

2         91 marks

3         90 marks

       4       45 marks

4         113 marks

5         102 marks

Yet the marks listed for the complainant were not revised. The highest marks listed were 120 marks .I found this to be an inconsistent practice.

However, I was most troubled by the respondents own records on the complainants cover letter and CV .The marking of 70 was placed on the copy of the cover letter and two of the three pages of CV were marked either by underlining or the insertion of marks . There was no marking or underlining on the Personal Statement. I acknowledge that the Personal statement was not a pre cursor for inclusion in the criteria for the marking sheet, however, it formed the basis of the application and it seems to be that it was not read by the respondent . This was reflected in the respondent submissions when they contended that they were unaware of the complainant’s disability during the course of the short listing process.

The Respondent outlined on the job advertisement that it was an Equal Opportunities Employer and I sought a copy of the corresponding Policy. The document I received was very comprehensive and appropriate to an equality proofed recruitment process, however, this policy became operational on 15 August 2016, some time after the events as outlined by the parties in this case.

In Connaught Gold Co-op Society V A Worker EDA 0822, the Labour Court held that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability in order to demonstrate that it was not aware of the employee’s disability. This referred to a claim for Discriminatory Dismissal and reasonable accommodation in the case of a depressive illness purported as not known by the Employer.

I have found that the Respondent was on clear notice of the complainant’s disability from his submission of his application for the position. I found that his application was treated inconsistently with other applicants. Both parties accepted at the hearing that the complainant had been incorrectly marked on his submitted CV and the Respondent submitted that if the correct markings had been applied, the complainant would have been interviewed. Of course, there was no guarantee that the complainant would have been successful at interview, but it was patently clear at the hearing that the complainant sought an interview and was very disappointed by his exclusion from that process.

I appreciate that the complainant was under the misapprehension that the short listing was undertaken by a Lay member of the respondent company and not the Financial Controller .I accept the evidence given by the Financial Controller on the context, background of the corrective action applied by the respondent in the wake of the discovery of the mistake .However, the candidate had been appointed to the position at that point.

I am satisfied that the Recruitment Policy and Procedure now in train at the respondent company adheres to the principles of Equality Opportunity and Diversity .

However, I must outline my conclusions in this case .

I was struck by the cogent arguments submitted by the complainant in relation to seeing the position as a much sought after career pathway for him and how he believed that he was unfavorably treated as a consequence of his application.

I have found that the complainant has satisfied the burden of proof in establishing a prima facie case of discrimination when the selection criteria for the short listing process were applied erroneously and inconsistently to him.

I found that the Selection process was bereft of transparency and while the Respondent contended that human error was at the root of the case, I still found that the respondent signed off on the short listing process, which absented the complainant from the next stage of proceedings, the interview .This was a serious loss of opportunity and in my opinion amounted to a careless action by the respondent .

As I probed on the current status of the position, I noted the reluctance of the respondent to expand on the organisations succession plan for the position. The respondent confirmed that the position had been filled on a one year basis, yet the advertisement did not specify that timeline.

The Social Model of Disability was considered extensively in the High Court decision of Nano Nagle School V Marie Daly,[2015]IEHC 785, The model stresses the intrinsic link that worker integration into the workforce holds.

Shortlisting must be seen as a vital cog in that process and due care, consideration and consistency of approach are hallmarks of achieving the goals of a fair , impartial and equal recruitment process .

I have found that the complainant has satisfied the burden of proof as outlined in Section 85A of the Acts and the respondent has failed to rebut the inference of discrimination.

Dated:     12 June 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Prospective Employment Process