Complainant

Respondent

Anonymised Parties

Representatives

        Citizens Information Service

Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023243-001

15/11/2018

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 15^th of November 2018) seeks redress from the Respondent in circumstances where he claims the prospective Employer behaved unlawfully and discriminated against him in the course of a job interview during the course of which he claims that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his disclosed disability (as detailed in Section 6 of the 1998 Act (as amended)).

The Complaint has been brought within the six months from the date of the occurrence and therefore within time limits.

Section 6 of the Employment Equality Act 1998 where

Sub Section (1) For the purpose of this Act…discrimination shall be taken to have occur where –

(a)    A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)(the “discriminatory grounds”)

Sub Section (2) As between any 2 persons the discriminatory grounds..are…

(b)    That one is a person with a disability and the other is not…

Section 8  of the Employment Equality Act 1998  - the employer shall not discriminate against an employee or prospective employee in relation to access to employment.

In the event that the Complainant is successful it is open to me to make an award of compensation and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

The Complainant is deaf. His Complaint is that the Respondent, a prospective employer, discriminated against him in the course of an interview for a position of warehouse operative. The Complainant gave evidence with the assistance of the services of an excellent interpreter.  The Complainant believed that his CV confirmed that he was equipped to perform the job advertised. The Complainant says that from the start of the interview it was clear to him that his deafness was seen as an impediment which the employer could not or would not overcome to allow the prospective employer give credible consideration to him as a prospective candidate. He says that this amounted to a discrimination.

The Respondent witness KH is the branch Manager. She says that at the commencement of the interview she was aware that the Complainant was deaf as he had advised of this by email. KH is not trained in HR and sought no advice regarding how to best conduct an interview with someone who is deaf. KH said that she interviewed twelve people for this position and quite simply the best and most enthusiastic candidate was selected for the position.

KH stated that she had to consider her responsibility for the safety of all her staff in this busy high-energy work environment. Hazards in the workplace include fast moving forklifts, reversing trucks and high racking. She said that asking how his deafness would be in the workplace was a relevant question.

KH stated in her evidence  that she  gave the Complainant the “opportunity to tell me how the disability wouldn’t affect his work.”

KH specifically stated that the Complainant had a bad manner in the interview. That he was short and impatient and that when referencing his CV he smacked his hand down heavily on the copy in front of them. KH said the Complainant was “hostile” from the start. She doubted that he would be a good fit for this small team of employees.

I have carefully considered the evidence adduced in the course of the hearing. The Complainant answered an advertisement placed by the Respondent warehousing company, which was looking for a warehouse operative with appropriate Forklift operation skills. There can be no doubt that the Complainant CV reads very well as evidenced by the prompt and enthusiastic email response by the Respondent Manager KH, inviting the Complainant in for a meeting. The Complainant was understandably delighted and made himself immediately available to meet and indicated that communication through email and text is preferable as he is “actually deaf”.

In her evidence KH  repeatedly stated that she was therefore aware of the fact that the Complainant was deaf and that she was “intrigued” to understand how this might work in their workplace.

When the Complainant arrived at the workplace the next day he was led through a series of friendly gestures by KH into the interview room. Both parties agree that the first thing said by KH was something to the effect that “So you’re deaf?”. The Complainant indicted that he needed paper and pen to communicate. This was provided, and KH took the initiative to start the interview by asking the question:

“In the warehouse how would you manage to work safely?”

and

“If there is a hazard and someone was to shout a warning how would you hear it?”

The Complainant said that this immediate focus on his disability was grossly discriminatory and to his mind the remainder of this interview was tainted by the fact that KH had set aside any preliminary discussion of his ability and experience in favour of a demand to know how his deafness could not be a hazard and a danger in the workplace. The Complainant felt he was being asked to defend his belief that he could work in this workplace. The Complainant was on the backfoot.

KH conceded that in any other interview conducted for this position she did not ask the individual candidate how they would manage to work safely. This question was reserved solely for the Complainant thereby negatively distinguishing between him and his competitors by reason of his deafness. KH had not sought advice on how to conduct this interview. She accepted that she might have been naïve. I accept that KH  was not obliged to look for advice, but it is clear that any prior consideration on best practise would have avoided a focus on disability instead of a concentration on ability.

The Complainant in his evidence kept referring to the idea of there being a certain “interview etiquette” which would normally be observed and of which he had plenty of experience. He stated he would expect a prospective employer would focus on previous work, previous experience and any skills and expertise which a proposed candidate might bring to a job. The emphasis placed on his deafness was offensive to him.

At the interview, the Complainant pointed out that he had worked for four years in a warehouse environment with colleagues and alongside machines and using forklifts and that he had managed perfectly well in this previous position.

KH stated in her evidence to me that she gave the Complainant an “opportunity to tell me how the disability wouldn’t affect his work.” However there is no evidence that KH did explore how this previous workplace had operated and whether any  particular accommodations as might have been in operation there, might similarly be implemented in the Respondent’s workplace.

It was put to me in the course of submission by and on behalf of the Respondent , that the Complainant’s allegation that the employer did  not provide reasonable accommodation could not be sustained  quite simply because the issue of reasonable accommodation  was not discussed and/ or explored in the course of the interview.  I have to accept that there is nothing contained in the notes to suggest any such accommodation was considered. To my mind, and based on the contemporaneous written notes of the interview, there is there is a staggering gap between KH’s proposition that she was “intrigued” to know how a deaf person could be assimilated into the workplace and the actual steps she took to appraise herself of how this would work in her workplace. The fact is she took no steps to learn how the perceived disability could be safely accommodated. I do not accept, in these circumstances, that the Defence to not considering what reasonable accommodations might be needed is to rely on the issue not being addressed at all. It was open to KH to explore the issue of how the previous workplace had operated and she opted not to do it.

The Complainant says he picked up on this lack of interest immediately, and this interview was over within ten minutes.

There is an obligation on employers in allowing for equal opportunities for access to employment to demonstrate an openness to candidates of all abilities. The best practise has to be to conduct recruitment interviews on the basis of ability so that all candidates of equal merit have an equitable opportunity to compete.

Much emphasis appeared to be placed on the correctness or otherwise of the Complainant having ticked the box (in the computer generated job advertisement) which asked “Do you speak English?”. In fact, in the course of the hearing, the Complainant was offended when asked if he speaks. It was a sensitive line of questioning. On balance though, I think it fundamentally wrong to try and somehow suggest that the Complainant had somehow tried to mislead the employer herein. The question should perhaps be preferable if it read “Do you speak and/or understand English?” thereby avoiding excluding people who are deaf and/or mute.

On balance, I am satisfied that per Section 85(A) of the Employment Equality Acts that the Complainant has established relevant facts from which it may be presumed that there has been a direct or indirect discrimination  in relation to this  Complainant, and that accordingly the burden of proof has shifted and then it is for the Respondent to prove that there has been no breach of the principle of equal treatment. The Respondent has failed to rebut the burden of proof.

Redress is set out in Section 82 of the Act and the limit in respect of non-employees such as the Complainant herein is set out therein.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00023243-001

I award the Complainant €5,500.00 redress.

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