EDA1826

This matter came before the Court by way of an appeal brought by Kerry County Council (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-0002694, dated 4 April 2017) under the Employment Equality Act 1998 (‘the 1998 Act’). The Notice of Appeal was received on 12 May 2017. The Court heard the appeal in Cork on 6 April 2018.

Mr O’Sullivan (‘the Complainant’) alleges that he was discriminated against by reason of his disability in the course of a final interview for the position of Staff Officer with the Respondent on 15 December 2015. The relevant part of his original complaint - received by the Workplace Relations Commission on 8 April 2016 – was formulated as follows:

• “… I have a disability of visual impairment. At the final interview the Chairperson of the Board commenced the interview by stating that I had attended Rehab. This statement drew the attention of the two other interviewers to my disability and this had a negative effect on my performance at interview. The other two members of the Interview Board appeared to me to become very uncomfortable when the Chairperson made this statement. I had attended Rehab over 20 years ago and I have worked with Kerry County Council for 21 years. I do not believe my time in Rehab should have been raised as its not relevant to my work history. Drawing attention to my disability at the commencement of my interview placed me at a disadvantage in relation to other candidates who do not have a disability. I believe this is contrary to the Employment Equality Act.”

• “I am satisfied that the appropriate form of redress is to appoint the Complainant to the next Grade 5 position from the panel that comes available on this panel as where the employee would have come on the panel is unknown based on his performance if he was not disadvantaged due to the behaviour at his interview.”

It is not disputed that the Complainant has a visual impairment which amounts to a disability for the purposes of the 1998 Act. He has been employed by the Respondent since May 1994 and has held the substantive position of Grade 4 Administrative Officer since 2000. The Complainant was appointed to the position of Acting Staff Officer Grade 5 in 2006. He continued to hold that position on an acting basis for 9 years.

On 30 September 2015, the Complainant was advised by the Respondent that the position in which he was acting was one of a number of positions which the Respondent had received sanction to fill on a permanent basis by competition. He duly completed and submitted a standard application form. The selection process comprised two stages: a shortlisting interview followed by a final interview. The Complainant was successful at the first stage and was one of a total of twenty-four candidates deemed suitable for final interview. The Respondent put in place a three-person interview board for the final interviews. This comprised two serving Senior Executive Officers from other local authorities and a former Acting Director of Services who had recently retired from service with the Respondent. The board members were provided with Guidance Notes for Interview Board Members and with a full briefing by representatives from the Respondent’s HR Department prior to commencing the interviews which were conducted over two full days in December 2015. The outcome of the final interview process was that twelve individuals were placed on a panel. The Complainant was not included in that number. He was advised of his results by the HR Department, initially by telephone and thereafter in writing on 21 December 2015.

The Complainant subsequently appealed the result of the final interview. He did so by email dated 11 January 2016. The appeal was conducted by Mr Martin O’Donoghue, a Director of Services with the Respondent. Mr O’Donoghue did not uphold the appeal. He issued his outcome letter on 29 February 2016.

Submissions

The Complainant submits that shortly after the commencement of his final interview on 15 December 2015, the Chairman stated “I see you were in Rehab – how did that go for you?” He further submits that the Chairman moved on with his questioning without giving him an opportunity to expand on his reason for attending Rehab Industries. This, he says, made him uncomfortable and impacted negatively on his performance for the remainder of the interview. He says his feelings of discomfort were compounded by the fact that the other Board Members also appeared to be uncomfortable because of the Chairman’s reference to Rehab.

There is a second element to the Complainant’s case. This relates to the application form he was required to complete. As is standard practice in the local government sector, the form included a section which provided an opportunity to an applicant to notify the recipient employer if he/she had a disability and to advise as to whether or not he/she required any form of accommodation during the selection process. The Complainant had completed this section stating that he had a disability and was registered with an organisation for the disabled but didn’t require any form of special accommodation during the interview process. The Respondent included this declaration by the Complainant of his disability in the pack that was furnished to the members of the Interview Board. He submits that this was also discriminatory and contrary to the 1998 Act as it immediately identified him as a person with a disability. He notes that the Respondent has since ceased this practice.

The Complainant’s representative referred the Court to a number of authorities in support of his case:Nkoto v Citibank[2004] 15 ELR 116;Nevins, Murphy, Flood v Portroe Stevedores Limited[2005] 16 ELR 282;South Eastern Health Board v Brigid BurkeEDA041;Ballinrobe Community School v WalshEDA065/2006;O’Higgins v UCDEDA131/2013;Micheline Sheehy Skeffington v National University of Ireland GalwayDEC-E2014-078;Gormley and Anor v Minister for Agriculture Food and the Marine (No. 2)[2014] IEHC 313.

The Respondent submits that the Complainant was asked the same range of questions during the course of his interview as all other twenty-three candidates. It is accepted that the Chairman did ask him about his time at Rehab but it is submitted by the Respondent that the question posed by the Chairman in this regard was in no way discriminatory as it did not make any reference to the Complainant’s disability. Furthermore, the Complainant had himself included his period at Rehab Industries on his application form under the heading of work experience. The Chairman asked him the question referred to above in the context of taking the Complainant briefly and quickly through his stated work experience in order to put him at his ease at the commencement of the interview as he had done with each of the candidates. This was done in way which facilitated a candidate to offer comments or observations on their prior experience if they so wished. Thereafter, in the Respondent’s submission the Complainant was asked questions in relation to a wide range of relevant issues including: the role of a Staff Officer, dealing with staff underperformance, changes introduced/managed by the Complainant, his key strengths, SUSI/higher education grants, shared services, Register of Electors, Local Government reform, LEADER etc. The interview, according to the Interview Panel’s records, ran from 9.28 a.m. until 9.55 a.m.

The Respondent relies on the following authorities:South Eastern Health Board v Brigid BurkeEDA041;Aon Commercial Services and Operations Ireland v Sayara BegEDA1324;RGIS Inventory Specialists v Liam DavisEDA1415;Cumann Luthchleas Gael Chorcai v Donal CoughlanEDA1428;Mitchell v Southern Health Board[2001] ELR 201;Igen Ltd v Kay Wong[2005] EWCA Civ 142;Ballinrobe Community School v WalshEDA065/2006;Valpeters v Melbury Development Ltd[2010] 21 ELR 64;Gormley and Anor v Minister for Agriculture Food and the Marine (No. 2)[2014] IEHC 313;

Witnesses

The Complainant gave evidence on his own behalf in relation to both the shortlisting interview and the final interview and his performance on both occasions. He stressed in his evidence that he felt taken aback by the Chairman’s reference in the final interview to his time at Rehab and that he believes he wasn’t given an opportunity to explain the background to that experience. In cross-examination it was put to him that he had included the reference to Rehab in the work experience section of his application form. He was adamant in his reply that this was the correct thing to do and he had done so previously when applying for promotion. He did not accept that as the primary purpose of his attendance at Rehab was education and training that he ought more properly to have included his Rehab experience in the education section of his form. It was also put to him that the Chairman did not cut short his questioning of the Complainant in relation to his subsequent work experience, for example with the Respondent, before handing him over to the next member of the interview panel. The Complainant maintained his position that the Chairman had cut short his questioning on noticing that his fellow panel members had become uncomfortable by reason of his reference to Rehab.

Two members of the final Interview Board gave evidence on behalf of the Respondent: Ms Aoife Duke and Mr Niall Healy. Ms Dukes is a Senior Executive Officer with Limerick City and County Council. Her evidence was that the marking criteria for the interviews for Staff Officer had been settled by the Respondent in advance. She told the Court that the Interview Board had been briefed on the morning of the first day of interviews by the Respondent’s HR Department in relation to note-taking, timing of interviews and compliance with equality legislation. The members of the Board then met alone to determined which of them would ask what questions of the candidates. It was decided that her questions would follow those of the Chairman and she would ask about the Staff Officer’s role, managing staff, dealing with underperformance and challenges the candidates had experienced in their careers to date. Her evidence was that she asked these questions of all the candidates including the Complainant.

Ms Dukes told the Court that she took notes while the Chairman questioned each of the candidates. Her notes of the Chairman’s interaction with the Complainant were opened to the Court. It was Ms Duke’s clear recollection that the Complainant did reply when the Chairman made reference to his experience in Rehab Industries. Her recollection was that the Complainant spoke about developing computer and typing skills during that period. Ms Dukes’s view was that the Chairman took the Complainant through the various parts of his work experience in the very same way as he did with each of the other candidates. She described the approach taken by the Chairman as very much focused on assisting the candidates to settle in to the interview process by talking them through their work experience and allowing them to comment as appropriate on what they gained from each element of that experience. She denied that she felt in any way uncomfortable or changed her demeanour in response to the Chairman’s questioning of the Complainant in relation to his work experience at Rehab. Likewise, she had not noticed any change in the Complainant’s demeanour at that stage in the interview. Ms Dukes told the Court that her impression was that the Complainant performed well at interview and provided the Board with good quality answers. Finally, Ms Dukes told the Court that personally she hadn’t been aware that the Complainant’s disability declaration was included as part of the pack provided to the Interview Board. She confirmed that his disability did not arise at any stage in the discussions of the Board.

At the time that the Complainant was interviewed for Staff Officer, Mr Healy was a Senior Executive Officer with Cork County Council. He is now a Director of Services there. His questions to the candidates, including the Complainant, focused on their knowledge of the system of local government, recent reforms in that area, and on their knowledge of Kerry County Council. He asked eight to ten questions of each candidate. Similarly to Ms Dukes, Mr Healy stated that he did not react to the Chairman’s question to the candidate about the latter’s experience with Rehab Industries, nor did his demeanour change in any way. In contrast to Ms Dukes, Mr Healy told the Court that had noticed that the Complainant’s declaration of disability formed part of the pack received by the Board but stated that he did not form any impression based on it.

Discussion

Having reviewed the extensive submissions and papers furnished to it by the parties and, in particular, the Complainant’s own written application for the position of Staff Officer, the Court is satisfied that the Complainant had included his experience with Rehab Industries in the work experience section of his application form when in hindsight that information probably would have been more appropriately included elsewhere on the form. He had done so in a way that conveyed the impression that his time there was a combination of work experience and training/education such that it is quite understandable why the Chairman of the Board would make reference to it while talking him through his stated work experience at the beginning of his interview in the same way as he did with each of the other candidates. The Chairman made no reference in so doing, either directly or indirectly, to the Complainant’s disability or the nature of that disability. The Court has no reason to doubt the evidence of Ms Dukes that the Complainant did in fact avail himself of the opportunity to make some remarks about his experience at Rehab in response to the Chairman’s question. Also, the Court finds that both Ms Dukes and Mr Healy were consistent, clear and convincing in their evidence to the effect that neither they nor the Complainant showed any signs of being discommoded by the Chairman’s question to the Complainant about his time at Rehab. In the circumstances, therefore, the Court is of the view that the Complainant has not made out a prima facie case to the effect that he was discriminated against on the basis of his disability during the course of his interview on 15 December 2015. On that basis, the Court overturns the finding of the Adjudication Officer and sets aside her decision that the Complainant should be awarded the next available Grade 5 position from the panel formed following the 2015 interviews.

However, it is accepted by the Respondent that the Complainant’s declaration of disability was included along with the pack submitted to the members of the Interview Board. This practice is not consistent with best practice as required by the 1998 Act. The Court awards the Complainant compensation of €5,000.00 in respect of this matter. This award, being compensation for the effects of discrimination, is not subject to tax.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
12 April, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.