EDA1918

This is an appeal on behalf of the Houses of the Oireachtas (‘the Respondent’) against an Adjudication Officer’s decision (DEC-E2018--023, dated 13 November 2018) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer had found that the Respondent had failed to make reasonable accommodation, pursuant to section 16 of the Act, in respect of Mr Thomas Hickey’s (‘the Complainant’) disability by refusing to delay, for a third time, his interview for a promotion competition in 2014. The Adjudication Officer directed, in accordance with section 82 of the Act that the Respondent pay to the Complainant the sum of €7,500.00 in compensation and that it should liaise with the Commission for Public Service Appointments (“CSPA”) to put procedures in place in relation to employees on sick leave availing of promotion competitions so as to ensure compliance with the Act. The Respondent’s Notice of Appeal – whereby the Respondent appealed against the entirety of the findings and orders made by the Adjudication Officer - was received by the Court on 21 December 2018. The Court heard the appeal in Dublin on 2 May 2019.

The Factual Matrix

The relevant facts are not in dispute and can, therefore, be recited succinctly as follows. The Complainant is a civil servant and has worked in the service of the Respondent since 2001. He has been Deputy Head Usher/Events Manager since 2012. In November 2013, he was appointed Acting Head Usher following the retirement of the previous incumbent.

The Complainant became ill at work on 30 December 2013. He was diagnosed with pleurisy and certified unfit to attend work. He submitted a medical certificate on 7 January 2014 to cover his absence for a period of fourteen days by reason of pleurisy. He was referred by his General Practitioner to a Respiratory Consultant on 19 February 2014. The Complainant submitted a second medical certificate on 22 January 2014 (dated 18 January 2014) stating he would be unfit to return to work for a further seven days. That medical certificate stated he was suffering from a “chest infection”. The Respondent thereafter received three successive medical certificates indicating that the Complainant’s ongoing absence was by reason of “pleurisy”. They were received respectively on 7, 13 and 21 February 2014. The Respondent referred the Complainant to the Chief Medical Officer on 3 March 2019. The Complainant submitted two further medical certificates – dated 21 February and 19 March 2014 – notifying the Respondent that the Complaint remained unfit to work until 24 March by reason of “lung investigation”. He returned to work on 24 March 2014.

The posts of Head Usher and Deputy Head Usher in the Houses of the Oireachtas were originally advertised internally on 19 November 2013 by Office Notice 6 of 2013. In early December 2013, the IMPACT Trade Union complained about the eligibility criteria that had been specified in the aforementioned Office Notice. The Respondent, therefore, replaced it with Office Notice 1 of 2014 – Confined Competition for Assignment to Head Usher and Deputy Head Usher – on 6 January 2014. The closing date for application was Monday 20 January 2014.

The Complainant duly submitted his completed written application and was notified of an interview scheduled for 28 January 2014. At the Complainant’s request, his interview date was rescheduled for 11 February 2014. The Complainant requested a further deferral on grounds of illness. A third date of 18 March 2014 was, therefore, set for the Complainant’s interview as he had informed the Respondent’s Personnel Officer by telephone on or around 21 February 2014 that he intended to resume work on 18 March 2014. The Complainant confirmed by telephone on 28 February 2014 that he would attend the rescheduled interview on 18 March 2014. The Complainant reluctantly, nevertheless, it appears, attended for interview on this date although he didn’t return to work until some six days later. The Respondent was anxious to complete the process as the other candidates had interviewed in January and the external member of the selection panel was due to retire in the near future.

The competition notified by Office Notice 1 of 2014 was a confined competition by which the Respondent intended to establish a panel to fill certain future vacancies that may have fallen vacant before 30 June 2015. However, it appears that as a consequence of a second intervention by the IMPACT Trade Union with respect to the confined nature of the promotion competition, the Respondent agreed at the time that it would fill only the single vacancy that existed as of the date of the competition and would not proceed to establish a panel to fill any future vacancies.

In total, four candidates were interviewed. The one vacant position was offered to and accepted by the candidate who came first in the competitive interview. The Complainant was not the successful candidate.

The Complainant sought an internal review of the selection process. The outcome of that review found that the process had been conducted in accordance with the relevant code of practice. The Complainant then referred a complaint to the CPSA. That office again found that the selection process had been conducted in accordance with the principles set out in the code of practice. It also noted that the Respondent had to be fair to the other three candidates who had completed their interviews in late January 2014, that there was pressure on the Respondent to fill a critical vacancy and that any further delay may have compromised the integrity of the interview process.

Preliminary Issue

The Act defines “disability” as follows in section 2:

• “’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”.

• “38 ….[T]he concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.
  
  39 In addition, it follows from the second paragraph of Article 1 of the UN Convention that the physical, mental or psychological impairments must be ‘long‑term’.
  
  40 ….
  
  41 It must therefore be concluded that if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.
  
  42 On the other hand, an illness not entailing such a limitation is not covered by the concept of ‘discrimination’ within the meaning of Directive 2000/78. Illness as such cannot be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination (see Chac�n Navas, paragraph 57).”