DEC-E2018-023

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2018-023

PARTIES 

A Deputy Head Services Officer

(Represented by Thomas E. Honan Solicitors)

V

A Government Department

(Represented by an In-house Solicitor & Counsel)

 File Reference: EE/2014/476

Date of Issue: 13th November 2018

1. DISPUTE

1. 1.1  This dispute concerns a claim by the Complainant that he was discriminated against by the Respondent in relation to his conditions of employment, training and promotion on the ground of disability, contrary to Sections 6(2)(g) and 8 of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) and/or was not afforded reasonable accommodation in relation to an internal promotion competition.

   1.2  The Complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 7th September 2014 pursuant to Section 77 of the Acts. On 27th September 2016, in accordance with his/her powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated the case to me, Aideen Collard, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing. The matter was initially listed for hearing on 10th October 2016 but was adjourned to enable the Complainant to avail of legal representation and the Respondent to provide further documentation. Thereafter it was heard over two days on 5th December 2016 and 2nd February 2017. Both Parties were legally represented, the Complainant by Thomas E. Honan & Company Solicitors and the Respondent by an In-house Solicitor and Counsel. A number of witnesses attended to give evidence on behalf of the Respondent. All written and oral evidence and submissions presented including documentation and written submissions submitted before and during the hearing have been taken into consideration.

     1.3  This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. PRELIMINARY ISSUE – WHETHER THE COMPLAINANT HAD A DISABILITY

1. 2.1  By way of preliminary issue, the Respondent submitted that the Complainant’s illness at the time of the alleged acts of discrimination did not constitute a disability within the meaning of Section 2 of the Acts. Whilst acknowledging that temporary conditions can fall within the definition, it was submitted that the Equality Tribunal / WRC must distinguish between the concepts of ‘disability’ and ‘sickness’ and such delineation requires consideration of the medical evidence in support of the condition, and the duration and relative seriousness of the illness. Reliance was placed upon Colgan -v- Boots Ireland Ltd DEC-E2010-008, where an ankle injury was deemed insufficient to meet the definition of disability. In so finding, the Equality Officer referred to the ECJ decision in Chácon Navos (C-130/05), which held that for a condition to meet the criteria for the purposes of the Framework Directive, it had to be “probable that [the condition] will last for a long time” and by using ‘disability’ in Article 1, the legislature had deliberately chosen a term different from ‘sickness’, and therefore the two concepts could not be treated as being the same. ‘Disability’ related to physical, mental and psychological impairments which hindered the participation of the person concerned in their professional life. Reliance was further placed upon the Court of Justice decision in Jette Ring -v- Dansk (C-335/11) which clarified the concept of disability in relation to the European Union adoption of the UN Convention on the Rights of Persons with Disabilities in 2009 and confirmed that the limitation caused by an illness must be a long-term one.

   2.2  Specifically, in relation to the instant case, it was submitted that the Complainant’s sick-leave absence from 6th January 2014 until 24th March 2014, being a period of almost three months cannot constitute a long-term limitation within the meaning of the Directive. To find otherwise would be hugely onerous on employers, particularly in the instant case where the Complainant had consistently advised the Respondent of his imminent return to work and almost always provided medical certificates retrospectively, thus perpetuating the understanding that his illness was short-term in nature. The burden of proving otherwise by way of medical evidence rests with the Complainant as found in Guinane -v- Tesco Ireland Ltd DEC-E2011-081. In this regard, it was submitted that he had failed to provide any meaningful medical reports outlining the nature and seriousness of his illness including a diagnosis, and the medical certificates furnished contained no detail whatsoever aside from stating at various instances that he had ‘pleurisy’, a ‘chest infection’ and a ‘lung issue’. It was further submitted that the Complainant was referred to an occupational nurse under the Respondent’s Chief Medical Officer (hereinafter ‘CMO’) as a routine administrative action in accordance with internal procedures requiring HR to refer sick-leave absences of more than four weeks duration to the CMO. The classification of the Complainant as being on ‘long-term’ sick leave was also for administrative purposes only. Therefore, he has not discharged the onus of proving that he had a disability at the time of the alleged discrimination.

   2.3  In response, the Complainant submitted that he had a disability within the broad meaning of Section 2 of the Acts at the material time of the alleged discrimination having regard to the unrefuted evidence that he had been under investigation for severe chest pain as confirmed in medical reports submitted and was certified unfit to work for some three months. He also relied upon the CMO’s nurse’s letter of 4th March 2014 confirming that his “sick-leave absence is for genuine medical reasons. He is under the care of a specialist doctor and is due to undergo some tests in the coming weeks. All going well he should be fit to resume work in a few weeks following these investigations. To help with his rehabilitation back to work, I recommend resumption on a reduced hours basis for the first four weeks. The exact arrangement can be agreed with local management.” It was also pointed out that in subsequent cases including Jette Ring -v- Dansk (C-335/11), the ECJ had rolled back from its position in Chácon Navos (C-130/05).

   2.4  It is necessary to examine the aforesaid objection in light of the definition of ‘disability’ provided by Section 2 of the Employment Equality Acts 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 evident from caselaw from the Labour Court and former Equality Tribunal / WRC, this broad definition has generally been interpreted liberally with a non-exhaustive list of conditions being found to fall within the definition of disability. However, a more recent trend in decisions relying upon the dicta in Chácon Navos (C-130/05) (which had the effect of limiting the definition to a medical model) including the case cited above have been subject to some academic criticism. In this respect, the writers (Bolger, Kimber & Bruton)in Employment Equality Law (2012), Paragraphs 7.52-7.57 submitted that such an approach was incorrect “given the wide definition in this jurisdiction without reference to any temporal limits.” and “…also arguably in breach of Art.8 and Recital 28 of the Framework Directive, which clearly provide that the Directive cannot be used by Member States to reduce or regress the level of protection provided in their law.” The Labour Court has also distinguished the Irish position from that in Chácon Navos (C-130/05). I prefer the more liberal interpretation for the reasons cited. Having considered the undisputed medical evidence to the effect that the Complainant was unable to work for some three months owing to genuine illness which had not resolved at the material time, I am satisfied that he was under a disability within the meaning of the Acts.

3. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

1. 3.1  The Complainant submitted written submissions and gave evidence outlining the background to this complaint. He commenced employment within the Civil Service in 2002 and had been promoted up to the grade of Deputy Head Services Officer in 2012, following a competition for the Head Services Officer and Deputy Head Services Officer positions wherein he had placed second. Prior to the introduction of the current competency-based recruitment process utilised within the Civil Service, the Head Services Officer role had traditionally been filled by the Deputy Head Services Officer. When the existing Head Services Officer retired on 6th November 2013, the Complainant acted up in his role until he became ill on 30th December 2013. The position was initially advertised by way of Office Notice in November 2013 but for operational reasons (which the Complainant had initially taken issue with but did not pursue herein), had to be cancelled and was re-advertised in January 2014. The Complainant had an excellent work history as confirmed in documentation furnished. Additionally, he had no prior history of sick-leave related absence. However, and as outlined above, on 30th December 2013, he took ill suddenly with severe chest pain and was admitted to hospital. He remained off work on certified sick-leave from 6th January 2014 until 24th March 2014. He had furnished medical certification on a weekly basis and fully cooperated with the Respondent including the request to attend the CMO for assessment.

   3.2  During this period of his sick-leave, the Complainant applied for the Head Services Officer position and following an application and interview process, was unsuccessful. Initially he had alleged that he had been the most suitable candidate for the position and was discriminated against on the ground of disability in relation the interview process and subsequent selection process. However, after the Respondent’s disclosure of documentation relating to the recruitment process, he discontinued this aspect of his complaint and accordingly it is not necessary to set out the submissions, evidence or law in relation to same. Thereafter, he pursued this complaint on the basis that he had been disadvantaged by his sick-leave whilst under a disability and alleged that the Respondent had had not provided him with reasonable accommodation to enable him to compete fairly, fully and effectively in the competition.

   3.3  When the Complainant had contacted HR seeking assistance with his application in circumstances where his computer was broken, he had no printer and his notes were in work, he felt that his situation was not taken seriously. He was advised to come into the office despite the fact that he was too ill and employees are not insured to attend the workplace whilst on sick-leave. He had been unable to attend a briefing session for eligible candidates on 13th January 2014 and custom and practice training had been denied when requested. Whilst he accepted that the interview had been postponed twice on 28th January 2014 and 11th February 2014 at his request to HR based upon medical advice, he felt pressurised to attend for interview on 18th March 2014 whilst still on sick-leave. This arose primarily from the wording in the notification letter from HR dated 28th February 2014, as follows: “I refer to your interview for the competition of Head Services Officer advertised in Office Notice X. I am sorry to hear that you continue to remain unwell and thank you for keeping us updated with medical certs. Your interview has now been rescheduled for Tuesday 18th March [2014 at X address]. If you cannot attend this interview please contact the HR Unit as soon as possible. The interview process will be concluded by the Board on this date. If you wish to discuss this matter or have any questions please feel free to contact me. In the meantime, I hope you continue to improve and that you will be back to full health soon.”

   3.4  Additionally, the Complainant said he had felt under extreme stress and pressure upon receipt of an earlier letter dated 12th February 2014 from HR referring to the competition and confirming that as per the relevant Circular, more than 56 days sick leave in a four year period would affect his eligibility for consideration for promotion which would be reached on 21st February 2014 and “we are hopeful that you will be able to return to work by that date and that you will be in a position to attend for interview the following week.” The letter made no reference to a discounting system provided for in the Circular to disregard periods of sick-leave in certain circumstances. He felt as if he had no choice but to attend the interview as scheduled. Contrary to that contended by the Respondent, at that time he had not known whether he would be well enough to attend for interview and this was a matter for his medical advisors. He was still under the care of his Respiratory Consultant and subject to ongoing investigations into his chest pain, and as such had not yet been certified as fit to return for work. As confirmed in the occupational nurse’s letter of 4th March 2014, his sick-leave was for genuine medical reasons.However, the Respondent had failed to make any enquiries as to his capacity to attend for interview at any stage or consider what, if any, reasonable accommodation should be made. Concerns about attending the interview had been flagged to the CMO’s nurse but had never been addressed. He had felt weak the day before the interview and found it difficult to prepare given that he had been out of the work environment for so long. Although he had felt that he had performed well at the interview, he was still not at his peak.

   3.5  The Complainant said that he had been “stunned” to learn on 24th March 2014 that he was unsuccessful in securing the position given that he was the most experienced and suitable candidate. Based upon the scoring provided, he had placed third in what was clearly a close competition between the candidates. The Complainant had attended for a feedback session with one of the Board members, a formal record of which noted that he had felt pressurised to attend for the interview. He had also exhausted the internal and external review procedures and whilst both upheld the process, the initial review holding that “there may be some merit in the CSPA giving consideration to providing best practice “facilitation advice/guidelines” to all organisations in relation to situations where an applicant is unable for sickness reasons to attend on the selected date of interview.” The Complainant furnished notes of his conversations with Board members after the interview about the process and other ancillary matters.

   3.6  Counsel for the Respondent put its position to the Complainant. The Complainant’s acting-up experience in the Head Services Officer role was also put in issue. Of relevance to this complaint, it was put to him that unlike the competition held in 2012, there was no formal training for this position, just a short briefing session in respect of which only two of the eligible candidates attended and the notes had been sent to him at home. Whilst he did not dispute this, he said he would have liked a face-to-face briefing and a HR representative to visit him at home. He accepted that he had been invited to attend the office to prepare his application using the facilities there but said that he had been too unwell and a friend had assisted him with typing it up. He was questioned about the application and interview process and confirmed that he was not taking issue with same. He was also questioned at some length regarding whether his illness constituted a disability and accepted that pleurisy had been the only diagnosis. He had not submitted any medical reports because he had not been asked for same. He also accepted that he had not raised any issue about his illness before or at the final interview despite the notification letter of 28th February 2014 stating that he if he could not attend, he was to contact HR. He maintained that by virtue of the line in the letter: “The interview process will be concluded by the Board on this date.”, he felt that it was not open to him to seek a further deferment. It was put to him that at the time of scheduling the third and final interview for 18th March 2014, the last medical certificate in the Respondent’s possession was valid until 17th March 2014. He denied saying to the HR Manager that he would be better by 18th March 2014 during a telephone conversation on 21st February 2014, as that was a matter for his medical advisors and rather that he had hoped to be better by that date. He also denied that he had positively confirmed his attendance during a telephone call to HR on 7th March 2014. He accepted that a week after the interview, he had returned to work on a reduced basis as advised.

   3.7  In legal submissions, reliance was placed upon the seminal case of A Health and Fitness Club -v- A Worker EED037 upheld by the Circuit Court in Humphries -v- Westwood Fitness Club (2004) E.L.R. 296, requiring a two-stage enquiry in relation to providing reasonable accommodation to an employee with a disability under Section 16 of the Employment Equality Acts as set out below. It was submitted that the letter of 28th February 2014 can only be interpreted as requiring the Complainant to attend for interview whilst still on sick-leave without affording him any choice. The Respondent should have reasonably had the Complainant medically assessed in relation to his capacity to attend the interview on 18th March 2014 to ascertain what, if any, accommodation was required. Other key cases were cited in relation to the general principles of discrimination and discrimination on the ground of disability in the workplace (but notably none of which addressed the provision of reasonable accommodation to employees on certified sick-leave applying for an internal promotion). As a consequence of not being successful in the competition, not only had the Complainant missed out on the Office he aspired to but being a grade higher than his current position, he had also suffered financial loss.

4. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE

1. 4.1  The Respondent submitted written submissions setting out the background facts and chronology of events giving rise to this complaint. This was supplemented with direct evidence from the HR Manager who oversaw the process adopted in relation to the promotion competition in question. She confirmed that it was conducted in accordance with the Commission for Public Service Appointments (CPSA) Codes of Practice. This required an assessment of candidates’ suitability based upon a competency-based application and interview, subject to attendance and PMDS ratings. She also outlined the internal process for managing employees on long-term sick-leave with reference to the relevant Circulars.

   4.2  The HR Manager then went on to outline the chronology of events during the Complainant’s sick leave from the Respondent’s perspective. Whilst she was aware that he was on sick-leave during the process as per the medical certificates provided, she said she was unaware that it was anything other than “normal illness”. In advance of the interview process, candidates were invited to a short briefing session. Only two of the eligible candidates attended, and a detailed briefing note was sent to everyone in the interest of equality and best practice. The Complainant had also been invited to attend the office to prepare his application form and was kept appraised of the process by post and email. His interview was postponed on 28th January 2014 and 11th February 2014 upon notification that he was too unwell to attend. The other candidates’ interviews had gone ahead on the first date. She recalled sending him the letter of 12th February 2014 stating that a period of in excess of 56 days absence could affect his eligibility for promotion but it had asked him to contact HR. Much of the communication with the Complainant during his sick-leave was via his Line Manager and she understood that the discounting system for disregarding sick-leave in certain circumstances had been explained to him. In an ideal world she said she would have sent him the Circular explaining the position. She also confirmed that he was referred to the CMO as a matter of routine, being a requirement for employees on long-term sick-leave.

   4.3  Concerned about the integrity of the process, the HR Manager said that thereafter she had obtained advice from the CPSA who were of the view that HR had done enough to accommodate the Complainant as per an internal email furnished. Additionally, a Board member was due to retire. The Complainant had also telephoned her on 21st February 2014 to confirm that he had expected to be back in work by 18th March 2014. Based upon this information along with his last medical certificate until 17th March 2014 and in the absence of any knowledge that his illness was anything other than short-term, she organised for his interview to be rescheduled for 18th March 2014 and the notification letter of 28th February 2018 issued accordingly. She also referred to the nurse’s letter of 4th March 2014 (not in her possession at the time of rescheduling) confirming that all going well the Complainant should be fit to resume work on reduced hours along with his own confirmation that he would attend for interview during a telephone call on 7th March 2014. As she had not received the medical certificate confirming his last period of sick-leave from 18th-23rd March 2014 until 26th March 2014 and after the interview, she had been unaware that he had remained unwell as at the interview. She contended that there had been no red flag as to his incapacity to attend for the interview which would have reasonably required further enquiry and she also had to ensure fairness to the other candidates who had been interviewed some seven weeks earlier.

   4.4  The Solicitor for the Complainant questioned the HR Manager in some depth as to her state of knowledge of the Complainant’s illness and as to what she regarded a “normal illness”. In reply, she said that she considered infections such as influenza, bronchitis and pleurisy to be ‘normal’. The medical certificates did not allude to anything more serious and she also relied upon the CMO for advice. Whilst she did not pen the letter of 28th February 2014 confirming the third interview date, she accepted responsibility for same. The contents were put to her as confirming a ‘D-day’ in relation to the end of the promotion competition. Whilst she accepted that it was intended to bring the process to an end, she contended that the Complainant was not entitled to construe the letter accordingly. Had he contacted her and confirmed that he was unavailable on 18th March 2014 and was due to return on 24th March 2014, that would have been another decision-point. The CPSA Codes of Practice also required her to consider fairness to other candidates. It was put to her that all of the information (including the length of absence, medical certificates and CMO Report confirming ongoing investigations and need for a reduced workload on the Complainant’s return to work) flagged a situation that was more serious than a “normal illness” and required further inquiry but the Respondent had pressed ahead notwithstanding same.

   4.5  One of the Board Members also gave evidence to confirm the integrity of the process. She outlined her extensive experience and expertise in the area including the accommodation of persons with disabilities. She confirmed that the interview process in question had been deferred on two occasions to accommodate the Complainant’s sick-leave and there had been concerns about the integrity of the process and need to maintain consistency of questioning and assessment. She confirmed that her function was to chair the process and she had no input in relation to assessing his medical condition. Her last point of contact with HR was confirmation that the Complainant was well enough to attend the interview. She also confirmed that he had appeared well at the interview and no concerns were raised.

4.6  Overall, the Respondent submitted that as required by the Public Service Management (Recruitment and Appointments) Act 2014, the promotion competition was conducted fairly and in compliance with CPSA Codes of Practice. Without prejudice to its preliminary objection, it was unfortunate that the Complainant was ill but the Respondent had reasonably accommodated him throughout the process including two deferrals of his interview. From the time of scheduling of the third and last interview on 28th February 2014, there was nothing to flag a requirement for further enquiry as to his capacity to attend in accordance with the two-stage process. He had not raised any issue regarding his capacity or sought further deferral notwithstanding that the notification letter requested that he contact HR if he could not attend. The HR Manager was entitled to rely upon the available information at the time of scheduling including the medical certificate until 17th March 2014 and his confirmation that he expected to be back at work on 18th March 2014. Not having received the final medical certificate until after the interview, she was unaware that he remained unwell on the date of the interview. In any event, a further deferral would have been unreasonable and disproportionate given the competing need to ensure fairness to the other candidates and pressure to fill the position. Therefore, the Complainant has not made out a prima facie case of discrimination on the ground of disability and/or failure by the Respondent to provide him with reasonable accommodation and accordingly his complaint should be dismissed.

5. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION / EQUALITY OFFICER

5.1  The issue for decision is whether or not the Respondent discriminated against the Complainant on ground of disability in terms of Section 6(2)(g) and 8 of the Employment Equality Acts and/or failed to provide him with reasonable accommodation in relation to the promotion competition under Section 16.

1. 5.2  Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. As elucidated in the aforesaid case law, it requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

   5.3  As set out aforesaid, I am satisfied that the Complainant had a disability within the meaning of Section 2 of the Acts at the material time. Section 6(2)(g) prohibits discrimination by employers against current or prospective employees by less favourable treatment on the ground of disability and Section 8 prohibits discrimination in relation to specific areas of employment including training and promotion. Aligned to these provisions, Section 16(1) provides that an employer is not obliged to recruit, promote or retain an employee in a position or provide training or experience in that position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is subject to 16(3) which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of ‘appropriate measures’, more commonly referred to as ‘reasonable accommodation’ by his/her employer. This is subject to the proviso under that such measures would not impose a disproportionate burden on the employer. Specifically, Section 16(3)(b) requires: “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.” In practical terms, Section 16 of the Acts as interpreted by the Labour Court in A Health and Fitness Club -v- A Worker EED037 and upheld by the Circuit Court in Humphries -v- Westwood Fitness Club (2004) E.L.R. 296, requires the employer to undertake a two-stage enquiry.

   5.4  Firstly, the employer has to establish the employee’s capacity and degree/duration of impairment by way of medical evidence obtained from its own doctor or independently, and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision.” The proactive nature of this process was emphasised by the Labour Court in A Worker -v- A Hotel, EDA0721 as: “[T]he duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.” Clearly, different considerations apply from those subject to the internal and external reviews and therefore it does not automatically follow that because those reviews upheld the process, that it complied with the Acts.

   5.5  Rather unusually, the instant case is not concerned with whether the Complainant had the capacity to undertake the role of Head Services Officer but rather what, if any, reasonable accommodation should have been made in relation to the competition for this position given that he was under a disability at the material time. The obligations imposed on an employer under Section 16 are far-reaching and Section 16(3)(b) clearly envisages the provision of ‘appropriate measures’ in relation to a promotion competition to enable an employee to “advance in employment”. The facts in the instant case are not substantially in dispute. The Complainant contends firstly that the Respondent did not provide him with adequate support and training in relation to his application and secondly that it did not ascertain his capacity to attend for interview on the third rescheduled date. Without prejudice to its preliminary objection that the Complainant did not have a disability, the Respondent contends that it reasonably accommodated him including providing him with notes from the competition briefing session and two deferments of interview. It was entitled to rely upon the information before it to proceed with the third interview date, given the absence of any difficulty attending being flagged by the Complainant or request for further deferment, and also had to ensure fairness to the other candidates and the integrity of the process.

   5.6  Dealing with the first part of this complaint, I am satisfied that there was nothing more that the Respondent could have reasonably done in terms of assisting the Complainant with his application for the position. It was not disputed that only a short briefing session was given to the candidates who attended, and the notes were sent to all eligible candidates including the Complainant. Therefore, I am satisfied that he was not at any particular disadvantage in this respect and further reject the contention that HR should have attended at his home as placing a disproportionate burden on the Respondent.

   5.7  Turning to the second part of the complaint, I must consider whether further enquiry should have been made to establish the Complainant’s capacity to attend for the third rescheduled interview on 18th March 2014. Although there was some dispute as to whether he had positively confirmed his ability to attend on that date, it is not in issue that he did not raise any issue regarding his capacity to attend with anyone beforehand. In this respect, I find his evidence credible to the effect that he construed the notification letter of 28th February 2014 and specifically the line: “The interview process will be concluded by the Board on this date.” as confirming that there would be no further latitude. Even taking the line beforehand: “If you cannot attend this interview please contact the HR Unit as soon as possible.”, I find this to be the only reasonable interpretation. Based upon the HR Manager’s evidence and internal email, I am also satisfied that it was the Respondent’s intention to bring the promotion competition to an end on that date. I am further satisfied that the Complainant also felt pressurised by the letter of 12th February 2014 from HR confirming that his sick leave could affect his eligibility for promotion without further explanation or inclusion of any information on the discounting system. It is also clear that the Respondent was aware that he remained on sick leave at the material time of scheduling each of the three interview dates yet made no formal enquiries as to his capacity to attend for interview such as referral to the CMO before scheduling same. I am of the view that regardless of any confirmation of recovery and attendance given by the Complainant, his certified sick-leave alone was sufficient to flag the necessity for further enquiry and formal confirmation that he would be fit enough to attend for interview.

5.8  Noting that the legal obligation rests with an employer to be proactive and to establish capacity in accordance with the first stage of the two-stage enquiry, I am of the view that the onus in this respect rested squarely with the Respondent to seek guidance from the CMO regarding the Complainant’s ability to attend for the interview before scheduling same. Further enquiry may also have established that the Complainant would have been certified fit to return to work from 24th March 2014 and the interview could have been rescheduled for that date. As he had already been referred to the CMO in respect of his long-term sick-leave on 3rd March 2014, a referral should also have been made to ascertain his capacity to attend for interview and any recommended accommodations made accordingly. Had such enquiry been made, at most the interview would have been postponed for a further week without compromising the process. As highlighted during the review process, there was no formal guidance as to the treatment of employees on sick-leave participating in internal promotion competitions available to the HR Manager and I have no doubt that she was doing her best to balance the competing interests of the Complainant and integrity of the process. Whilst I am also of the view that this complaint is primarily motivated by the Complainant’s disappointment at not being appointed to the position in question, I must conclude that the Respondent failed to meet its obligations under Section 16 of the Acts in this respect only.

6. DECISION

1. 6.1  I have concluded my investigation of this complaint and based upon the aforementioned reasoning, find that pursuant to Section 79(6) of the Act, the Complainant has made out a prima facie case that the Respondent failed to provide him with reasonable accommodation in terms of Section 16 of the Acts which has not been rebutted. Given that the Respondent had made other efforts to accommodate the Complainant within the competition process including two deferments of interview, I consider this discrimination to be on the lower end of the scale and have measured compensation accordingly.

       6.2  In accordance with Section 82 of the Act, I order the Respondent to:

(a)    Within 42 days of the date herein, pay the Complainant €7,500 in compensation for a breach of the Employment Equality Acts. This award is arrived at having regard to the seriousness of the discrimination as outlined above, effect on the Complainant and requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

(b)    If not already done, as per Section 82(1)(e) of the Acts, I further order that the Respondent liaise with CSPA to put procedures in place in relation to employees on sick-leave availing of promotion competitions so as to ensure that they are in compliance with the Employment Equality Acts.

1. 6.3  Given the sensitivities in this case, I have exercised my discretion to anonymise this decision. 

     Aideen Collard

1. Adjudication / Equality Officer

   13th November 2018