Complainant

Respondent

Parties

Eirene Qualter

Public Appointments Service

Representatives

Alan Ledwith, BL, instructed by DM O'Connor & Co. Solicitors

Joseph Dolan Chief State Solicitor's Office

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-00019149-001

09/05/2018

The Complainant was an employee of the Public Service from 1992 to 2015. The Complainant availed of ill-health retirement from the Department of Art, Heritage and The Gaeltacht, on 30 January 2015.

The Complainant’s health improved substantially, to the effect that, from January 2016, she has been free from medication and has had no relapse of her conditions.

On the basis of her improved health, the Complainant set about getting herself back to work by applying for various roles within the Civil Service, as follows:

1) Temporary Clerical Officer (TCO) position

The Complainant was successful in this competition and began working at the Department of Social Protection on 21 August 2017.

On 28 September 2017, the Personnel Officer of the Department of Social Protection met with the Complainant and informed her that she was not entitled to have applied for the TCO competition due to her retirement status. On 3 October 2017, the Complainant received a letter notifying her that her contract of employment as a TCO would terminate on 13 October 2017.

2) Clerical Officer (2016) competition

The Complainant applied for a permanent position through the Clerical Officer competition, which was administered by the Public Appointments Service (PAS). The Complainant was successful, on the order of merit system. Consequently, the Complainant was sent for a medical assessment which was carried out by the Chief Medical Officer (CMO) on 31 July 2017.

The Complainant received a letter, dated 9 November 2017, from the PAS stating, inter alia, that following her appointment with the CMO the previous July, they had received written notification from the CMO (dated 25 September 2017) that he had “significant concerns about your future ability to give regular and effective service” and, as a result, they had no option but to withdraw the Complainant’s application for the position of permanent Clerical Officer.

By way of letter dated 13 November 2017, the Complainant requested a review of the decision to withdraw her candidature for recruitment with the Civil Service on the basis of the CMO’s citing with regard to her ability to provide regular and effective service. By way of email dated 17 November 2017, the Complainant received written advice that the original decision to withdraw her candidature was upheld.

3) Executive Officer in the Civil Service (2016) competition

In response to her application for this competition, the Complainant received a letter, dated 16 February 2018, which again advised that, due to the concerns raised by the CMO with regard to her ability to provide regular and effective service in the future, which were previously notified to her in relation to the Clerical Officer campaign, her application for the Executive Officer position was now being withdrawn and her candidature would receive no further consideration. The information contained in the Respondent’s letter of 16 February 2018 was based on a letter received from the CMO, dated 1 February 2018, in which it was stated that the opinion set out in the letter 25 September 2017 “remains unaltered”.

By way of letter dated 26 February 2018, the Complainant appealed the decision to withdraw her application on the basis of the CMO’s recommendation. The Complainant was subsequently informed, by way of letter dated 26 March 2018, from the Civil Service Occupational Health Department, that there was no appeal mechanism within the CMO’s office to reconsider the advice already given.

On 9 May 2018, the Complainant submitted a complaint to the Workplace Relations Commission, under section 77 of the Employment Equality Act, 1998, in relation to the withdrawal of her application under the Executive Officer in the Civil Service (2016) competition. The said complaint is the subject of this adjudication.

Response to the Respondent’s Preliminary Objections:

In response to the Respondent’s objection to the Complainant’s complaint being pursued under the Employment Equality Acts, on the basis that the Respondent, being the Public Appointments Service, was never the prospective employer of the Complainant and was, therefore, wrongly identified as the employer, the Complainant’s representative made the following submission:

The Public Appointments Service (PAS) is the appropriate entity named as a respondent in circumstances where they act as agent or servant of the ultimate prospective employer. It was submitted that the Workplace Relations Commission had, through previous decisions, considered that the appropriate entity to sue in respect of claims of this nature was the Public Appointments Service. In support of this contention, the Complainant’s representative cited the case of: The Public Appointment Service v Cillian Flynn [EDA1673].

In response to the Respondent’s objection to the complaints being pursued under the Equality Acts on the basis that a complainant seeking redress in respect of a complaint of discrimination by the Civil Service Commissioners in the course of a recruitment selection process should, in the first instance, refer the claim for redress to the Commissioners themselves, the Complainant’s representatives made the following submission:

The Respondent’s claim, in the above regard, is moot in circumstances where the Complainant sought a review of the decision and was informed, through correspondence, that all remedies were at an end. It was submitted, on behalf of the Complainant, that the Respondent is estopped from relying on such a provision in circumstances where they represented to the Complainant that her remedies were at an end, meaning any remedies she sought would have to be through the WRC and not otherwise. In support of the position in this regard, the Complainant submitted relevant correspondence.

Substantive Complaints:

It was submitted on behalf of the Complainant, that, at all material times, the refusal of employment, which, it is contended, is not in dispute and which is common case between the parties, is based exclusively on the CMO’s view that the Complainant would not be in a position to take up employment.

It was further submitted on behalf of the Complainant that she was discriminated against pursuant to Section 6 of the Employment Equality Act 1998, pursuant to Section 1 (a) (2), where she was treated less favourably than another person is/has been or would be treated in a comparable situation on discriminatory grounds, which pursuant to that section existed but no longer exists in respect of Section 6 (2) (g) whereby one is a person with the disability and the other either is not or is a person with a different disability.

It was further submitted that the Complainant is relying on Section 2 of the Act and, in particular, Section 2 (1) (e), where a condition, illness or disease which affects a person’s thought processes, perception of reality, which results in disturbed behaviour, is considered to be within the definition of disability under the Employment Equality Acts.

According to the Complainant’s submission, the Respondent has an obligation, pursuant to Section 16 of the Act, to treat those with disabilities in a way as expressly set out and, in particular, pursuant to Section 16 (3) (b), which requires the employer to take appropriate measures, where needed, to enable a person who has a disability, to:

a)       Have access to employment.

b)      Participate or advance in employment or,

c)       Undergo training unless the measures would impose a disproportionate burden on the employer.

It was submitted on behalf of the Complainant that the Respondent, in this case, as the employer, has failed to meet the above obligations at all and has simply, as a matter of course, on the basis of the Complainant’s historical illnesses/disability, decided to refuse her application for employment without any or any adequate regard to what amounted to discrimination under the Acts.

It was submitted that the Complainant relies specifically on Section 16 (3) (b) (1) which specifies all obligations of an employer in respect of prospective employees, whereby the employer shall take appropriate measures where needed, in particular to enable a person who has a disability to have access to employment at first instance.

The Complainant further submitted that, whether or not such steps would amount to a disproportionate burden is not relevant in this case, as no such burden arises.

In conclusion, it was submitted on behalf of the Complainant that the relevant authorities are: Cahill v Minister for Education and Science [IE SC 29] and Nano Nagle School v Daly [2018] [IEHC 78]

Background to the Respondent:

The Respondent, the Public Appointments Service (PAS), was established on 19 October 2004, under the terms of the Public Service Management (Recruitment and Appointments) Act 2004. The Respondent is the principal regulator of recruitment and selection processes within the Public Service. It has a statutory role to ensure that appointments in the organisations subject to its remit (i.e. those that fall under the authority and scope of the Commission) are made on candidates’ merit and as a result of fair and transparent appointment processes.

Responses to the Complainant’s complaints:

It was submitted that the Respondent strenuously denies the allegations made by the Complainant and does not accept that it acted, in any way, in breach of the Employment Equality Acts, as alleged or at all. It is further submitted that the Respondent is committed to ensuring equal treatment for all those seeking access to, and all those in, employment. Accordingly, the Respondent submitted that there is no basis to the Complainant’s complaint.

In support of the above position, the following submissions were made on behalf of the Respondent by their legal representative.

a)       Preliminary objections:

It was submitted that the Respondent objects to this complaint being pursued under the Employment Equality Acts in circumstances where the Respondent was never the prospective employer of the Complainant, who had applied for (insofar as it is relevant) an Executive Officer position within the Civil and Public Service.

It was submitted that, in this context, the Respondent is not and was not at any time the employer of the Complainant. It was further submitted that, on her Workplace Relations Commission complaint forms, the Complainant wrongly identifies the Respondent as her employer. According to the Respondent’s submission, the Complainant erred, arising from confusion on her part, about pursuing a claim under the Equal Status Act, 2000 – 2015, as seen in correspondence sent from the Complainant’s solicitors to the Respondent on 5 April 2018, announcing that she had purportedly issued a notification under the Equal Status Acts and enclosing a Notification Form ES1.

It was further submitted by the Respondent that, without prejudice to the position as outlined in the foregoing paragraph, Section 77 (7) of the Employment Equality Act, 1998 – 2015, requires that a complainant seeking redress in respect of a complaint of discrimination by the Civil Service Commissioners, in the course of recruitment and selection process, shall, in the first instance, refer the claim for redress to the Commissioners themselves.

According to the Respondent, Section 77 (8) of the Acts, confirms that a claim cannot be made to the WRC until either the Commissioners have failed to give a decision, or the Complainant is not satisfied with the decision. It was further submitted that, under the Public Services Management (Recruitment and Appointments) Act, 2004, Section 77 (7) of the Employment Equality Acts was amended to replace the Civil Service Commissioners by the “holder of a recruitment licence under the Public Services Management (Recruitment and Appointments) Act, 2004”.

It was submitted by the Respondent, that the Complainant, in the present case, has failed to seek redress from the Respondent under any of the sections of the Code of Practice. It was further submitted that, whilst the Complainant did seek to appeal the decision of the CMO in relation to her candidature for the Executive Officer campaign, she did not exhaust all avenues available under the provisions of the Code of Practice.

As regards the Clerical Officer position, the Respondent submitted that the Complainant sought and was granted an informal review of the CMO’s decision but did not proceed to exhaust all avenues available under the provisions of the Codes of Practice. According to the Respondent’s submission, the Complainant’s complaint is in breach of Section 77 of the Acts and that the WRC consequently has no jurisdiction to hear the complaint. In support of their position in this regard, the Respondent placed reliance on the decision of the Labour Court in An Garda Síochána v Michael Murphy [EDA129]

The Respondent submitted that, in failing to initiate a complaint pursuant to the above provisions and, instead, choosing to issue her complaint under the Employment Equality, the Complainant had erred. It was further submitted that the WRC has no jurisdiction to entertain the within complaint against the Respondent under the Employment Equality Act, in circumstances where the Respondent is neither an employer nor a prospective employer within the meaning of those Acts and where the correct procedure has not been followed under the Code of Practice.

b)      Response to the substantive complaint:

Without prejudice to the foregoing preliminary objections, the Respondent, proceeded to make the following submission in response to the substantive element of the Complainant’s complaint:

The Respondent submitted that the Complainant was a candidate for the Executive Officer (2017) campaign. It was further submitted that the Complainant was successful at all selection stages of the process and was placed on a panel.

According to the Respondent’s submission, when the Complainant’s place was reached on the panel, the last stage of the competition process, namely “clearance” began. The Respondent submitted that “clearance” is an entirely separate stage of the recruitment process involving the Respondent carrying out all necessary enquiries including health and character checks, to assess the candidate’s suitability for appointment.

The Respondent submitted that the Complainant was requested to complete a Health and Character Declaration (HCD). According to the Respondent’s submission, the Complainant stated as follows on the HCD for the Executive Officer competition: “Case number 11841 with CMO. Previously retired on ill-health grounds.” The Respondent also referenced an earlier HCD the Complainant had completed for a Clerical Officer competition, in which she stated as follows: “I retired from the civil service in January 2015 on the recommendation of the Chief Medical Officer (CMO). I have since worked on regaining full health under care of HSE consultant. Currently not receiving treatment though subject to six monthly review.”

According to the Respondent’s submission, as the HCD stated that the candidate had previously retired on ill-health grounds, she was referred to the Civil Service Occupational Health Department (CSOHD).

At this juncture in the submission, the Respondent described the role of the Chief Medical Officer (CMO)/(CSOHD) in their recruitment processes. It was submitted that the office of the CMO/CSOHD carries out pre-employment medical assessments in order to establish a candidate’s fitness to perform a job without undue risk to themselves or others. It was further submitted that it is also helpful in identifying if workplace modifications and adjustments are required due to a disability. According to the Respondent, while GPs are expert when it comes to treating illness, Occupational Health doctors and nurses have an expert knowledge of how health can affect a person’s work and have a special knowledge of their work duties and workplace.

According to the Respondent’s submission, the CMO/CSOHD directs them in relation to the appropriate medical assessment for all positions. It was submitted that a candidate may be requested to attend a medical examination or complete a HDC form, depending on which is appropriate. It was further submitted that, following assessment of the medical information, the Respondent is advised of the candidate’s medical fitness for work and any workplace adjustments required under the Employment Equality Legislation.

The Respondent submitted that, on 25 September 2017, they received a letter from the CMO/CSOHD regarding the Complainant’s health status for the Clerical Officer competition.   According to the Respondent, the CMO/CSOHD’s physician stated, inter alia, as follows: “it is a management issue as to whether or not to offer her a permanent position but I have significant concerns about her future ability to give regular and effective service.”

According to the Respondent’s submission, on 1 February 2018, they also received a letter from the CMO/CSOHD regarding the Complainant health status for the Executive Officer competition. It was submitted that, once again, the statement, as set out above, received in relation to the Clerical Officer competition was made in relation to the Executive Officer competition.

The Respondent submitted that, based on the information provided by the CMO/CSOHD, the Complainant’s application was submitted to the Senior Management Clearance Group for review on separate occasions. According to the Respondent’s submission, the decision of the Clearance Group was that the clear advice of the CMO/CSOHD had to be respected and, on that basis, the Complainant’s candidature could not proceed any further.

According to the Respondent, it was important to note that the “significant concerns” flagged by the CMO/CSOHD’s physician required serious reflection by the Respondent as he had indicated “significant concerns about her future ability to give regular and effective service”. The Respondent submitted that there were, accordingly, compelling and legitimate business needs surrounding the decision taken by the Respondent to follow the advice of the CMO/CSOHD.

The Respondent further submitted that it is important to stress that the references to the decision being a “management issue” are standard features of reports from the CMO/CSOHD, whose medical personnel are clearly not well placed to comment on matters coming within the domain of managerial prerogative. However, according to the Respondent, the reality is that all parties would fully accept that the significant concerns of the CMO/CSOHD would be duly respected by the Respondent, which is what occurred in this case and that due deference would be shown to the medical expertise within the CMO/CSOHD.

In their submission, the Respondent stated that it was necessary to clarify that there is a world of difference between a temporary position and a permanent position from the perspective of the health and suitability of a candidate for a particular role. According to the Respondent, it is conceivable that a candidate may be certified as fit for a temporary role where she or he would not be fit for a permanent role, due to, inter alia, the potential long-term disruption caused by regularity of service and performance of the kind envisaged by the CMO/CSOHD physician in this case.

According to the Respondent’s submission, the Complainant requested an informal review of the decision regarding her Clerical Officer application. It was submitted that this review was conducted fairly and objectively by the Respondent’s Clearance and Assignments Manager. It was further submitted that this review resulted in the decision being upheld again, based on the advice of the CMO/CSOHD and the Complainant was duly advised of the outcome of the informal review.

According to the Respondent’s submission, the Complainant appealed the decision of the CMO/CSOHD in relation to her Executive Officer application. It was further submitted that the CMO/CSOHD indicated to the Respondent that there is no appeals mechanism in the process. It was submitted that again the Complainant was informed of this.

In conclusion, the Respondent submitted that the decision, in relation to the Complainant’s application for both the Clerical Officer and the Executive Officer competitions was based on the advice provided by the CMO/CSOHD.

c)       Legal Arguments made in the Respondent’s defence:

In support of their responses to the Complainant’s substantive complaint, the Respondent submitted a number of legal arguments.

Firstly, with reference to Section 16 (3) of the Employment Equality Acts, the Respondent submitted that, while it acknowledges that it is necessary to consider reasonable accommodation via appropriate measures when directed to do so by the CSOHD/CMO, no such direction was given in this case. The Respondent further submitted that, in any event, it is clear from the recommendations of the CSOHD/CMO physician, that no such reasonable accommodation would avail the condition of the Complainant in this case. According to the Respondent’s submission, the possibility of employment is, sadly, at an end in such situations. In support of their argument in this regard, the Respondents cited the recent decision of the Court of Appeal in the case of Nano Nagle School v Daly [2018 IECA 11].

The Respondent placed further reliance on the recent decision of the High Court in the case of Dublin Bus v McKevitt [2018 IEHC 78], where the Court give consideration to the authority of Bolger v Showerings [1990 ELR 184]. The Respondent drew particular reference to paragraph 61 of the judgement where Ní Raifeartaigh J, states as follows:

“Insofar as there was a suggestion that the decision was in effect made by the CMO and not the HR Department, I cannot see that there was any flaw in the system used by Dublin Bus in that regard. The duty rests with the employer, Dublin Bus, to ensure that the dismissal was not unfair. In a case where a judgement call has to be made as to whether someone’s medical history renders them unfit for work, it seems to me sensible that the judgement call would be made by suitably qualified and experienced medical personnel. Again, it seems to me that this submission is based on an attempted transplantation of the procedures that would be appropriate in investigating factual allegations of misconduct into a wholly different context.”

According to the Respondent, the above passage is particularly pertinent in the within case in demonstrating that there is no question of any denial of fair procedures to the Complainant in all the circumstances of this case.

Without prejudice to the foregoing, the Respondent submitted that the Complainant had failed adequately to discharge the burden of proof upon her – particularly in circumstances where she has not fully revealed the medical reasons behind her retirement on health grounds in January 2015. The Respondent submits that the factual context to that retirement is clearly crucial in giving context and relevance to the comments of the CSOHD/CMO physician, on which this case turns. The Respondent claims that by failing to do this, the Complainant has failed to establish sufficient prima facie evidence to discharge the burden of proof placed on her.

With regard to the matter of establishing prima facie evidence, the Respondent referred to the cases of Southern Healthboard v Mitchell [2001 ELR 201], Graham Anthony & Company Ltd v Margetts [EDA038] and Valpetersv Melbury Develplments Limited [EDA 0917].

In light of the above referenced cases, the Respondent submitted that the Complainant, in this case, failed to discharge the evidential burden required of her and failed to establish a prima facie case of discrimination and, accordingly, the Respondent submits that her complaint should be rejected in its entirety.

The Respondent further submitted that it is only if the initial prima facie burden is discharged and the WRC is satisfied that the facts, as established, are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. According to the Respondent, if the complainant does not discharge the initial probative burden required of her, then her case cannot succeed.

However, without prejudice to the foregoing, the Respondent submitted that, in the event that the Complainant is found to have met the prima facie case threshold, then the Respondent submitted they had more than adequately discharged the onus that would then be placed upon them to explain why the occurrence in question was not discriminatory. The Respondent again emphasised the fact that it was bound to follow the recommendations of the CSOHD/CMO physician. The Respondent submitted that, in doing so, it was acting in the interests not only of the Complainant but of the Public Service as a whole.

In conclusion, the Respondent submitted that the Complainant’s complaint was without merit and should be rejected in its entirety.

Preliminary Points:

In responding to the Complainant’s complaint, the Respondent made two preliminary points.

The first preliminary point related to the Respondent’s contention that they, as the Public Appointments Service (PAS), were not, at any time, either the employer or prospective employer of the Complainant and, as a result, they were wrongly identified, by the Complainant, as her employer in her complaint to the WRC.

In response to this preliminary point, it was submitted, on behalf of the Complainant, that the PAS was the appropriate entity to be named as respondent for the purposes of the Complainant’s complaint to the WRC. In support of their contention in this regard, the Complainant placed reliance on the case of: The Public Appointments Service v Cillian Flynn [EDA1673].

Having reviewed the above referenced case, I am satisfied that it is an appropriate reference case for the within complaint, in that it reflects a situation where both an Adjudication Officer of the WRC and the Labour Court recognised the PAS as the appropriate respondent in a complaint made to the WRC arising out of that complainant’s participation in a Clerical Officer recruitment campaign, during which he contended he was discriminated against by the PAS. Given the direct similarities between the cited case and the within case, I am satisfied find that the PAS is the appropriate respondent for the purposes of the submission of complaints of this nature.

This view is further confirmed by the fact that successful candidates, in competitions of this nature, are normally unaware of which department/agency they will be appointed to (i.e. who their employer would be) until they have completed the full process. Consequently, where a candidate contends that an alleged act of discrimination prevented them from reaching the appointment stage at which time their prospective employer would be identified, it would be inappropriate to consider any body, other than the PAS, as the appropriate respondent for the serving of complaints under the Employment Equality Acts in relation to the recruitment process.

The Respondent’s second preliminary point related to their contention that Section 77 (8) of the Employment Equality Acts, 1998 – 2015, confirms that the WRC has no jurisdiction to hear a complaint unless or until the Complainant has appropriately appealed, in line with the Code of Practice, to the Respondent who have either failed to give a decision or have given a decision with which the Complainant is not satisfied. It is the Respondent’s contention that, as the Complainant in the within case has failed to exhaust all avenues available to her under the Code of Practice, the WRC has no jurisdiction to hear her complaint brought under Section 77 of the Acts.

In response to this point, the Complainant submitted that the Respondent’s argument in this case is moot, in a context where the Respondent had advised the Complainant that her remedies were at an end.

Section 77 (8) of the Acts, states as follows:

“(8) Where subsection (7) applies to a claim for redress in respect of discrimination, the complainant may not refer the case under subsection (1) or (3) unless —

(a)    the holder of the recruitment licence concerned or, as the case may be, the Minister for Defence or the Commissioner of the Garda Síochána have failed to give a decision on the claim on or before the twenty-eighth day after it was referred, or

(b)    the complainant is not satisfied with the decision given on the claim, and in a case to which paragraph (a) or (b) relates, the end of the period of time which is applicable under subsection (5) (including, where appropriate, applicable under that subsection by reference to subsection (6)) shall be construed as—

(i)                  the end of that period, or

(ii)                the end of the period of 28 days from the expiration of the period referred to in paragraph (a) or the date of the decision referred to in paragraph (b),

whichever last occurs”.

The evidence adduced demonstrates that, the Complainant received a letter dated 9 November 2017 from the Respondent advising her that her application for a Clerical Officer recruitment campaign, which she had also applied for, had been withdrawn and her candidature would not be considered any further, for identical reasons as in the within case. On that occasion, the Complainant wrote to the Respondent, by way of letter dated 30 November 2017, requesting: “further clarity regarding the criteria used in my medical assessment, and to a reasonable expectation of a right of appeal”.

Having reviewed the Code of Practice for appointments to positions in the Civil and Public service, I conclude that the Complainant’s letter of 20 November 2017, with regard to the Clerical Officer competition, was in effect request for review under the “Informal Review Process”.

By way of email dated 17 November 2017, the Manager of the Respondent’s LVC Clearance and Assignments Section advised the Complainant, inter alia, as follows: “I have examined all the information available including the instruction from the CMO. At this time, I uphold the original decision”.

While I note that this correspondence directs the Complainant to the Respondent’s website, where it is noted she will find further information on the review process, it does not contain any specific response to the Complainant’s request for information in relation to her right of appeal nor does it refer to the procedure for “Formal Review” of a selection process decision. In the absence of such information and in the context where the earlier decision had been considered by a more senior manager, I find it wholly reasonable that the Complainant would have concluded that the process was at an end and that she was, therefore, entitled to progress her complaint in relation to the Clerical Officer campaign the WRC.

With regard to her application for the Executive Officer campaign, the Complainant wrote to the Respondent on 26 February 2018 advising that she wished to “appeal the decision made in relation to my candidature for the EO based on the CMO recommendation”. While the Complainant’s correspondence in this regard does not specify that her appeal was being submitted under the “Formal Review” procedure, I am satisfied that it would be reasonable to view this as a more formal request for an appeal than that which she submitted in relation to the Clerical Officer position.

The Complainant’s appeal of the decision in the Executive Officer campaign concluded with a letter, dated 26 March 2018, from the CSOHD Occupational Health Physician to the Respondent which stated as follows: “there is no appeal mechanism within the CMO’s office to reconsider the advice given already”.

Clearly, given the above outcome to her appeal of the Executive Officer application, combined with the outcome of her request for a review in relation to the Clerical Officer campaign, I find it was not unreasonable for the Complainant to once again consider that she had exhausted the appeal process and to submit her complaints to the WRC.

Consequently, taking all of the above into consideration, I am satisfied that the Complainant’s complaint is submitted in line with Section 77 (8) of the Acts and that I have the appropriate jurisdiction to consider same.   On that basis, I proceeded to consider the Complainant’s complaint.

Substantive complaint:

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he/she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "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".

In support of her complaint, the Complainant, in the within case, is inferring that she was discriminated against, by reason of her disability, in relation to getting a job.

Section 2 (1) of the Employment Equality Acts , 1998 – 2015 defines “disability” as follows:

“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;”

As can be seen from the above, the Acts set out the broad nature of conditions or impairments which could give rise to disability for the purposes of the Acts.

In the within case, the Complainant contends that her application/candidature for the Executive Officer recruitment competition in 2016 was withdrawn and received no further consideration as a result of concerns raised by the Civil Service Occupational Health Department (CSOHD) with regard to her ability to give regular and effective service in the future.

It is clear from the evidence adduced, that the CSOHD/CMO’s concerns, as set out in the letter dated 25 September 2017 and subsequently restated in a letter dated 1 February 2018, related to the noting that the Complainant was: “found to be incapable of regular and effective service for the foreseeable future by this office in 2014 and she was ill health retired from the civil service in January 2015. In her evidence, the Complainant stated that her retirement on ill-health grounds, in 2015, was due to postnatal depression, alcoholism and substance abuse. Consequently, I am satisfied that the basis on which the Complainant’s application for the Executive Officer competition was withdrawn by the Respondent directly related to her retirement on ill-health grounds relating to conditions which conform to the definition of disability as set out in Section 2 (1) of the Equality Acts.

Finally, in this regard, the Respondent submitted that the Complainant failed to adequately discharge the burden of proof on her to establish a prima facie case of discrimination by failing to fully reveal the medical reasons underpinning her ill-health retirement in 2015. The Respondent further contended that the factual context to the Complainant’s retirement in January 2015 was crucial in giving context and relevance to CSOHD/CMO’s concerns.

In a context where the Respondent based their decision to withdraw the Complainant’s application on the CSOHD/CMO’s concerns, as set out in the report of 25 September 2017, I am of the view that any responsibility in relation to the revealing of the medical reasons underpinning the concerns and the decision based on those concerns, must rest with either or both the CSOHD/CMO and/or the Respondent, but not with the Complainant, who was at all times upfront with the fact that she had retired on ill-health grounds in 2015.

Therefore, taking all of the above into consideration, I am satisfied that the Complainant has established a prima facie case of discrimination and, as a result, the burden of proof switches to the Respondent to prove to the contrary.

In their response to the substantive claim of discrimination on the grounds of disability, the Respondent stated that the decision to withdraw the Complainant’s application for the Executive Officer competition was based on the advice provided by the Civil Service Occupational Health Department (CSOHD).

In support of their position in this regard, the Respondent contended that the CSOHD directs them in relation to the appropriate medical assessment of applicants for all positions. With regard to the Complainant, in the within case, the Respondent stated that the “significant concerns” flagged by the CSOHD in the letter of 25 September 2017, were given serious consideration, the result of which was that they considered there to be compelling and legitimate business needs which required them to follow the advice of the CSOHD and withdraw the Complainant’s application for the competition.

Having carefully considered all of the evidence adduced, it is clear that the Respondent’s decision in relation to the Complainant’s application for employment was based solely on the report dated 25 September 2017 from the Occupational Health Physician at the CSOHD and the subsequent letter of 1 February 2018. It is further clear that the critical piece in the September 2017 report was the physician’s comment that: “it is a management issue as to whether or not to offer her a permanent position but I have significant concerns about her future ability to give regular and effective service”.

In their evidence to the Hearing, the Respondent referred, at different times to the content of this report being “a recommendation” and “advice”.   However, irrespective of what label is applied to his comments in this regard, I am of the view that the physician clearly stated that the decision as to whether or not to offer a position to the Complainant was one for management to make. I am further of the view that the physician’s report does not provide a specific medical basis for the concerns raised. In fact, the report states, inter alia, that the Complainant: “is well at present and compliant with medical advice. She is not on any specific treatment at present.”

In this regard, I also note the comment of Ní Raifeartaigh J in the case of “Dublin Bus v McKevitt [2018 IEHC 78] where she states as follows: “in a case where a judgement call has to be made as to whether someone’s medical history renders them unfit for work, it seems to me sensible that the judgement call will be made by suitably qualified and experienced medical personnel”.

While I accept that the report of 25 September 2017 was provided by the Occupational Health Physician at the CSOHD, it makes no reference to the Complainant being considered “unfit for work”. On the contrary, it clearly states that the “judgement call” in this case, was one for management to make.

Having carefully considered the evidence adduced, it appears that the decisions in relation to the Complainant’s application for employment were based solely on the content of the CSOHD physician’s report. While I accept that the concerns raised in the physician’s report were such that would require significant consideration, I do not accept that they provided an immediate basis on which to decide that the Complainant’s applications should be withdrawn, at least without some further exploration or query as to the extent or nature of those concerns and whether or not it may have been possible to address/accommodate these concerns in such a way that would have allowed the Complainant’s applications to have progressed.

In their evidence, the Respondent contended that the concerns raised in the letter of 25 September 2017, did receive “serious reflection”. No evidence was adduced which would support this contention or from which the nature or extent of these reflections could be established. On the contrary, it was submitted by the Respondent that the “recommendations” contained in the letter of 25 September 2017 were such that no reasonable accommodation would avail the condition of the Complainant in this case.

Having carefully considered the CSOHD physician’s report in detail and, in the absence of any evidence to suggest that the Respondent sought further clarification from the Report author and/or any independent “second opinion” on the matter, I find there to be little or no basis for the Respondent’s conclusion that the report of 25 September 2017 indicated that it was not possible to find reasonable accommodation for the Complainant’s situation. This situation was not altered by the issuing of the CSOHD physician’s letter of 1 February 2018. This appears to be a mere restatement of the position as set out in the 25 September report, in a context where there is no evidence to suggest that any further assessment took place.

Section 16 of the Employment Equality Acts sets out the nature and extent of the obligations placed on an employer in relation to the employment of a person with a disability. In particular, Section 16 (1) (b) sets certain limitations on those obligations, where it states as follows:

16. – (1) “Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual –

(b) is not (or, as the case may be, it is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”

However, notwithstanding the above limitation, the relevant obligation imposed on an employer in relation to the employment of a person with a disability is set out in Section 16 (3) of the Acts, as follows:

(3) (a) “For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training, unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.”

When considering the case law in relation to the obligations placed on employers by Section 16 of the Employment Equality Acts, 1998-2015, the case of Marie Daly v Nano Nagle School is probably the most informative, given that the matter has progressed from the original Equality Tribunal decision through four Courts of appeal, resting with the recent decision by the Supreme Court. At the time of the hearing of the within case the matter rested with the decision of the Court of Appeal [2016 No. 67] which issued on 31 January 2018.

In that decision, the Court found, inter alia, that following from Section 16 (3) (a) and (b), it was “not in dispute that the School as employer was obliged, subject to it not being a disproportionate burden, to take appropriate measures, which will enable Ms Daly to undertake the duties of the position….”. However, while clearly confirming the general obligations placed on an employer to consider appropriate measures, the Court Of Appeal went on to find that an employer was only required to consider the distribution of non-core tasks and did not need to consider the redistribution or elimination of any core duties of an employee’s role/position.

The decision of the Court of Appeal was subsequently overturned on appeal to the Supreme Court in October 2019. In their decision, the Supreme Court confirmed that the employer must demonstrate that they have fully considered the reasonable accommodation issue. In particular, the Supreme Court noted that the test “is one of reasonableness and proportionality”.

Having carefully considered all of the evidence adduced in the within case, I am not satisfied that the Respondent has adequately considered the reasonable accommodation issue or met “the test” as prescribed above by the Supreme Court. There is no evidence to suggest that the Respondent did anything other than act on the comments in the report of 25 September 2017 from the Occupational Health Physician at the CSOHD.

In their submission, the Respondent contended that the obligation to consider reasonable accommodation, as set down in Section 16(3) (a) and (b) of the Acts, is only applicable in circumstances where they are directed to do so by the CSOHD. The Respondent further submitted, in relation to the within case, that (a) no such direction was given and (b) it was clear from the physician’s recommendations that no such reasonable accommodation would avail the condition of the complainant in this case.

Having carefully considered the evidence, I do not accept the Respondent’s submissions in this regard. Firstly, I find that the report of 25 September 2017 from the CSOHD clearly places the decision as to whether or not to offer the Complainant employment in the hands of the Respondent. Secondly, I am satisfied that the physician does not make any reference to or recommendation on the Complainant’s “condition” in his report. Consequently, in that context, I find it difficult to understand how the Respondent can conclude that it was clear from the “recommendations” that no such reasonable accommodation would avail the Complainant’s condition.

The reality in this case, as supported by the evidence or lack thereof, is that, based on concerns raised by the CSOHD physician in relation to the Complainant’s ability to give regular and effective service into the future, which in turn appears to have been based on the Complainant’s conditions as they applied at the time of her ill-health retirement in January 2015, was acted upon by the Respondent without any further attempt to understand the nature of the “concerns” being raised and/or to consider what accommodations might be put in place to overcome same.

In my view, there were several avenues open to the Respondent on receiving the report of 25 September 2017 which might have included, but not necessarily be limited to, (a) seeking a greater understanding of the concerns raised by the CSOHD physician in his report and their impact on the Complainant’s ability to provide regular and effective service, (b) seeking a more detailed medical report which would ground the stated concerns in terms of the Complainant’s medical condition/disability or (c) given that the Complainant had recently being employed in a Public Service role, seeking the input of her supervisors in that role in relation to the performance of her duties and/or any issues with may be predictors of future performance. However, these, nor any other avenues, were not explored by the Respondent.

Consequently, taking all of the above into consideration, I find that the Respondent has failed to comply with the obligations placed on them, as employers, by Section 16 (3) (a) and (b) of the Acts and I find, as a result, that the Complainant’s claim of discrimination on the grounds of disability is well-founded.

Based on the above finding   and having given careful consideration to the issue of redress, I conclude that an order for compensation for the effects of act of discrimination, in line with Section 82 (1) (c) the Employment Equality Acts, 1998 – 2015, is the most appropriate form of redress.

When considering the amount of compensation that would be appropriate in the within case, I have taken cognisance of the fact that the Complainant submitted a similar complaint of discrimination to the WRC in relation to the Clerical Officer (2016) campaign, which was upheld. (See complaint reference: ADJ-00013917)

The compensation awarded in relation to the above referenced complaint was based on the premise that, had that act of discrimination not taken place the Complainant would have most likely been appointed to the Clerical Officer position. Consequently, a potential loss in salary arising from that act of discrimination was factored into the compensation figure for that complaint.

With regard to the Complainant’s complaint in relation to the Executive Officer (2016) campaign, which is the subject of the within complaint, it is less clear as to what the potential outcomes may have been with regard to her eventual appointment, has the act of discrimination not resulted in her removal from that campaign. Consequently, I am satisfied that it would not be appropriate or reasonable to factor in potential salary loss in this case. In any event, I am further of the view that the Complainant would not be entitled to receive compensation based on potential salary loss in relation to both the Clerical Officer and Executive Officer competitions, as she would, most likely, eventually have ended up in one or other positions.

Consequently, taking all of the above into consideration and having carefully considered the matter of redress, I award the Complainant an amount of €3,000, which I consider to be fair and reasonable compensation for the effects of the discrimination on the Complainant in respect of the Executive Officer recruitment campaign, on which this complaint is based.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find the Complainant’s complaint is well-founded and I make an award of €3,000 in her favour for the Respondent’s breach of Section 8 (1) (a) of the Employment Equality Act, 1998-2015.

The above award represents compensation for infringement of the Complainant’s rights under equality legislation in relation to discrimination on the ground of disability. It does not include any element relating to remuneration and is, therefore, not taxable.

Employment Equality Act

Reasonable Accommodation