Complainant

Respondent

Anonymised Parties

Industrial Supervisor

Incarceration and Reformatory Service

Representatives

Owen Keany BL, Clodagh Gill & Aoife Keane of Sherwin O'Riordan,

Peter Leonard BL, Karen Duggan & Claire Ryan Chief State Solicitors Office, Vivienne Matthews-O’Neill BL, Terry Boyle, Mary Mulvihill

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-00026425-001

20/02/2019

The Complainant is an Industrial Supervisor since 1st February 1994. He has claimed that he was discriminated upon on grounds of disability and the Respondent’s failure to provide reasonable accommodation. He has sought compensation.

This case is linked to a Protected Disclosure claim. I have exercised my discretion and decided to anonymise the parties.

The Complainant’s claims against the Respondent have been brought pursuant to the Employment Equality Act 1998.

The Complainant claims to have been subjected to discriminatory treatment on the grounds of his disability. In particular, the Respondent discriminated against the Complainant and failed to provide reasonable accommodation to the Complainant in relation to his access to a promotion.

The Complainant began working for the Respondent on the 29th August 1994. The Complainant has shown unwavering commitment to his job and his duties at all times during his employment and has sought to progress his career by way of promotion wherever possible. The Complainant currently occupies the role of Industrial Supervisor.

The Complainant has at all times since his early childhood suffered with a speech impediment, in that he stammered. He engaged in therapy in or around 1990-1993 in an effort to improve his speech, and although he suffered with a stammer throughout his period of employment with the Respondent, the Complainant is confident that it never affected his work or performance. During the ordinary course of his duties, the Complainant's stammer will most likely go unnoticed by the ordinary person.

On the 11 September 2018, the Complainant submitted a lengthy written application for the position of Chief Officer II with the Respondent. As part of this application, the Complainant disclosed to the Respondent that he considered himself to have a disability and stated: "I have a stammer. I have no special requirements other than an understanding that I may stammer and pause during speech to compose myself".

The Complainant scored 345 out of a possible 500 on this application, based on his written evidence of capabilities, competence, experience and skill, exceeding the requisite score of 300 to proceed to the interview stage.

The Complainant's interview took place on the 23rd November 2018. When he attended for his interview, he was greeted by a person who would be taking notes at the interview on behalf of the Respondent. Prior to the commencement of the interview, the Complainant commented to her in private that he hoped he would not have too much difficulty with his stammer. It was at that point that the Complainant was made aware that despite his disclosure on the application form, the panel of interviewers had not been informed of his disability. This information immediately caused the Complainant to become anxious and distressed, as a result of which he found greater difficulty speaking.

Despite his best efforts, the Complainant entered the interview in a state of distress, anxiety, and upset. The Complainant was then required to demonstrate vocally evidence of his capabilities, competence, experience and skill, similar as to what he had done in his written application. The Complainant was again given a score out of a possible 500, based on his ability to verbally articulate evidence of the above. The minimum interview score for successful candidates was 300. The Complainant received a score of 280.  

The Respondent discriminated against the Complainant by failing to provide reasonable accommodation during the interview process. The low score awarded to the Complainant during his verbal interview was directly attributable to his disability and the failure on the part of the Respondent to provide any reasonable accommodation of same.

Legal Submissions

Discrimination / Failure to Provide Reasonable Accommodation

The Employment Equality Acts, 1998-2015 prohibit discrimination on the basis of disability. ‘Disability’ is defined for the purpose of this legislation as:-

(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 behaviours.

Pursuant to Section 16 of the Employment Equality Acts, employers are obliged to take ‘appropriate measures’ to meet the needs of individuals suffering with a disability. Appropriate measures are effective and practical changes that the employer puts in place, or ought to put in place, that will enable an employee with a disability to carry out his/her duties on an equal footing with others. An employer is obliged to take appropriate measures insofar as such measures don’t constitute a ‘disproportionate burden’ on the employer.

In the Supreme Court decision of the Nano Nagle School v Daly [2019], Section 16 of the Employment Equality Act was considered and the Court found that the obligation on an employer is to consider all appropriate measures which could be undertaken to provide reasonable accommodation. When considering reasonable accommodations that should be made employers should take real steps to identify their financial and other costs related to such accommodation before determining whether or not that accommodation can be made.

In the case of Humphries v Westwood Fitness Club [2004] 15 ELR 296, the Complainant suffered from an eating disorder and was employed of as a child-minder in a creche run by the Respondent. The Labour Court acknowledged that the Respondent had initially been reasonably accommodating the Complainant in allowing her the necessary time off to attend hospital and medical appointments. Ultimately the Respondent dismissed the Complainant on the basis that she was not fit for work due to her condition. In finding that the Respondent had discriminated against the Complainant on the grounds of disability, the Labour Court examined the nature and extent of the enquiries which an employer should take prior to the dismissal of an employee on this ground. The Court stated as follows: “At a minimum … an employer, should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for the incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms this will normally require a two-stage enquiry which looks firstly at the factual position concerning the employee’s capability including a degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer from either the employee’s doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable, Section 16 (3) of the Act requires the employer to consider what if any special treatment or facilities may be available whereby the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organization and its financial resources.”

It is submitted that the speech impediment from which the Complainant suffers falls within the definition of ‘disability’ provided above. The Complainant was entitled to be reasonably accommodated as part of his application for promotion. It is submitted that any of the following accommodations could have been put in place by the Respondent without an undue burden:-

                                                               i.      Written interview only;

                                                             ii.      Oral interview to be supplemented with written interview;

                                                           iii.      Oral interview with advance notice to the interviewers and extended time for the Complainant to respond to questions.

While the accommodations proposed above would not constitute an ‘unreasonable burden’ on the Respondent, it is submitted that the Respondent failed to even consider these or any other options despite being put on notice by the Complainant of the difficulties.

The steps which are required to be taken by an employer in cases such as this were considered by the Labour Court in the case of A Worker v An Employer [2005] ELR 159. Considering the provisions of section 16(1)(b) of the Employment Equality Acts 1998 as amended, the Court stated as follows: … the subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them. The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with the disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus, it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.

The Respondent’s dismissive attitude towards the Complainant’s condition has not only caused him significant distress and humiliation, it has hampered his prospect of promotion where he would otherwise have been successful, resulting in significant financial loss.

This evidences clearly the attitude of the Respondent towards the Complainant, and it is submitted that the Respondent’s conduct amounts to discrimination against the Complainant on the grounds of disability.

The Complainant has identified comparators and named them at the hearing that were interviewed as part of the process, who did not suffer from a disability of the kind suffered by the Complainant and were not discriminated against.

It is submitted that, for the reasons outlined above, the Complainant ought to succeed in his claims under the Employment Equality Acts 1998.

It is the Respondent’s strong position that the Complainant was not discriminated against in any way in the course of participating in the said recruitment competition.

The Complainant applied for Chief Officer II (Work and Training) Competition. In total l84 candidates applied for the position. 37 were shortlisted for interview and 19 were placed on the panel. The Complainant was among the 37 candidates shortlisted for interview, however, ultimately, he did not succeed in getting on the panel.

The Complainant completed the Application form for the Chief Officer II position on the 11th September 2018. Part 1 of the form allows an applicant notify the competition organisers if he, or she has a disability. The Complainant marked the box stating that he had a disability and then described his disability underneath as follows: “I have a stammer. I have no special requirements other than an understanding that I may stammer and pause during speech to compose myself.”

Other than advising the competition organisers that he had a stammer, the Complainant did not request any form of assistance, or accommodation, on account of his disability.

The Complainant then completed parts 2, 3 and 4 of the Application form. It is accepted that Parts 2, 3 and 4 of the application form were provided to the interview panel in advance of the interview taking place. However, in accordance with the traditional practice that is followed in recruitment competitions, part 1 of the form - which contains personal details, such as contact telephone numbers and email addresses - was not passed on to the interview panel.

As stated above the Complainant was successfully shortlisted for interview and called for interview on the 24th November 2018. As the Complainant was waiting to go in for interview, the person who was responsible for bringing candidates to and from the interview room and who also served as note taker/scribe for the interviews, approached him and said hello and told him that she would be back to him in a few minutes. She returned shortly afterwards with a copy of his application form. She shook hands with him and asked him to take a seat as the interview board were not ready, at that time, to begin the interview.

She asked him how he was and she noticed that the Complainant appeared to be a little nervous. She asked if she could do anything to help. He said that he was okay, but then mentioned that he had a stammer. She asked him if he wanted her to bring his stammer to the board's attention. The Complainant confirmed that he did. She then left him briefly to return to the interview room saying that she would be back for him shortly. When she went into the interview room, she spoke to the interview board and informed them about the Complainant’s stammer. All members of the board confirmed that they understood what she was saying and confirmed that they would assist and accommodate the Complainant if his stammer became problematic in the course of the interview.

The interview with the complainant got underway shortly thereafter. Despite it being an extensive interview, it is the case that issues to do with the Complainant’s stammer never arose and the Complainant experienced no difficulties in answering the questions which were asked of him by the interview board.   It is clear from the detailed notes of the interview that at no point did the Complainant’s stammer become problematic. Nor was there any requirement to pause the proceedings on the basis that the Complainant had a difficulty in communicating an answer.

On 27th November 2018 the Human Resources Directorate wrote to the Complainant informing him that he had been unsuccessful in the competition. A copy of the Complainant’s interview scoresheet was enclosed with the letter. The same day the Complainant responded as follows: "Thank you for informing me so quickly about the result. Obviously, it is a disappointment for me not to make the panel. I would be grateful if the following could be clarified.

1. How many positions are there on the final panel?

2. What was the score of the last person on the panel?

3. Were there any points awarded outside of the written competencies and interview for educational achievements?

4. Where the scores for the written competencies and the interviewed competencies added together to give a final score or was just the interview score used to formulate a list of successful candidates?

5. What was my overall ranking in this competition?

6. How many people who consider they have a disability were successful in getting a place on the panel?

While it is the case that at point 6 above, the Complainant raises a general query about candidates with disabilities, it is noteworthy that he makes no reference to his own disability and the impact that it might have had in the course of the interview.

The Complainant continued to have on-going contact with the HR Directorate in relation to the outcome of the Chief Officer II recruitment competition. He subsequently submitted a complaint to the Commission for Public Service Appointments under Section 8 of the CPSA code claiming that the recruitment campaign had breached the CPSA code of practice.

In the course of a very detailed application to the CPSA challenging the probity of the recruitment competition, the Complainant referred to his stammer and acknowledged the role which had been played by the person dealing with the candidates on the day of the interview. He confirms that she did inform the interview panel that he had a stammer prior to his interview getting underway. However, he then adds: "the process of my stammer been brought to the attention of the panel put me on the back foot and ramped up my anxiety rather than decreasing it. It would have been much more preferable if the information I provided in part one of the application about my disability could have been conveyed in a different way to the panel."

Again, it is submitted that the Complainant does not identify any difficulties that he experienced in the course of the interview as a result of his stammer. Nor does he suggest that he had been denied accommodation or assistance that would have been of assistance to him on the day. It is the case that in the course of the same recruitment competition, the same interview board encountered another candidate who had a stammer. In this candidate’s case the stammer became very problematic in the course of the interview and it interfered greatly with his ability to answer questions which were put to him by the board. The chairman of the interview board who is very experienced in conducting such interviews, attempted to assist the candidate by allowing him to take his time and giving him additional time to answer any questions posed. He also offered the candidate the opportunity to move on to other topics, with the option of returning at a later stage to the topic which had caused him difficulty. Again, drawing on his experience of interviews he attempted to continue the discussion between that candidate and the interview board in a conversational style rather than along the lines of the traditional question and answer format. However, despite employing all of these assistance techniques, the candidate in question was unable to continue, and accordingly, had to withdraw from the Chief Officer II recruitment competition.

It is the case that Complainant would have been accommodated in a similar manner if his stammer had caused him communication difficulties. However, as stated above the Complainant experienced no such difficulties and as a result the interview board had not need pause or employ assistance mechanisms in the course of his interview.

The Law

It is accepted that a stammer would qualify as a disability as understood under the employment equality Acts. Section 2 of the 1998 Employment Equality Act defines disability as:

(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;

While it is the case that in the context of these proceedings the interview panel would have understood the nature of a stammer and the difficulties that it could give rise to in the course of a job interview, it is a fundamental aspect of employment equality law that where an employee is seeking reasonable accommodation from his employer on the grounds of disability there is a duty on the employee to ensure that the employer is made fully aware of the disability and the impact that the disability has in the course of employment.

In A Worker v A Food Manufacturer DEC –E2010-187 the Equality Officer dealing with the adequacy of the medical evidence provided by the employee in that case, clearly found that there was an onus was on the claimant to establish, with probative medical evidence, a prima facie case that he/she had a disability: “With regard to the complainant's complaint of discriminatory treatment and discriminatory dismissal on the ground of disability, the first aspect of the test which the complainant has to satisfy is to show that he is disabled within the meaning of the Acts. Counsel for the complainant clarified that the complainant's condition should be interpreted in light of paragraph (c) of the definition of disability in S. 2 of the Acts, which defines disability as "a malfunction, malformation or disfigurement of a part of a person's body". However, no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant's GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates. However, I find that these are not numerous enough to infer the existence of a disability simply from their existence. In this regard, I also take account of the decision of the Labour Court in Melbury Developments v. Valpeters [EDA0917], in which the Court, asked to interpret S. 85A of Acts which addresses the shift in the burden of proof, held unequivocally that the onus of establishing a prima facie case is on the complainant.

Again, while it is submitted that the interview board herein fully understood the nature of a stammer and the impact it could have in the course of an interview, if it is the Complainant’s position that the panel did not understand the nature of his disability there was a duty on him to make sure that the organisers of the recruitment competition were fully appraised of any difficulties, complete with medical evidence, he might have.

In Humphries v Westwood Fitness Club a decision of Dunne J, which was recently endorsed by the Supreme Court in Nano Nagle School v Marie Daly [2019] IESC it has also been established that the onus of investigating the nature of a disability, or medical condition claimed, only falls to the Employer when the Employer has been fully informed of the disability by the Employee concerned. In Shannon Regional Fisheries Board and A Worker (Determination EDA1318) the Labour Court set out the position as follows: "The general principles set out in Humphries v Westwood Fitness Club require an employer to make a bona fide and informed decision concerning a disabled employee's capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive. "

Legal Test to establish Discrimination:

Again, it is submitted that where discrimination on the grounds of disability is being claimed, in accordance with Section 85A of the Employment Equality Acts, the onus is on the Complainant to establish a prima facie arguable case of discrimination before the Respondent is required to disprove that discrimination has taken place. Section 85A of the Employment Equality Acts provides as follows: "(1) Where in any proceedings facts are established by or on behalf of a complainant 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”.

In Melbury Developments v Arturs Valpetters EDA 0917 the Labour Court set down the definitive test as to how Section 85A should be interpreted: " Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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.

Therefore, in accordance with the appropriate legal test, it is submitted that the onus is on the Complainant to establish that a credible case of discrimination exists, before the Respondent is required to respond.

Accordingly, for the reasons set out above, it is the Respondent’s position that the Complainant was not discriminated against on the grounds of disability in the course of the Chief Officer II competition.  

I note that the Respondent confirmed that a stammer is accepted as a disability.

I note that the Complainant stated on his application form that he had a stammer and went on to state. “I have a stammer. I have no special requirements other than an understanding that I may stammer and pause during speech to compose myself.”

I find that he sought no accommodation other than an understanding.

I find that the Assistant at the selection process made the panel aware of the fact that the Complainant had a stammer.

I note that the Chair of the Selection Panel gave evidence that he is a very experienced interviewer and has considerable experience of people interviewing with stammers and how they are accommodated.

I note that he gave evidence that one of the applicants in this process had a bad stammer and despite accommodation was unable to continue.

I note that the Chair gave evidence that the Complainant was very eloquent at interview.

I note that the Complainant described his stammer as a monumental problem at interview.

Yet I note that the Complainant did not ask for time to compose himself, pause the interview or requested any accommodation during the interview.

I note that the Complainant had interviewed previously and had raised complaints about the process, so he was aware of what faced him and he demonstrated an ability to look out for himself.

I note that the Adjudication Officer asked the Complainant to compare his level of nervousness attending this adjudication hearing compared to the interview. He described them as being the very same.

I found no evidence that the Complainant had a problem whatsoever communicating at this hearing.

I find that It has been the well-established practice of the Equality Tribunal, WRC and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he/she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the court stated in respect of the provision in S. 85A that; “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A 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 Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”2.4               

I find that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

I find that based on the evidence produced at this hearing that the Complainant has not established a prima facie case of discrimination.

Accommodation for a disability