Complainant

Respondent

Parties

Colm McNamee

Offaly Integrated Local Development Company Limited By Guarantee

Representatives

Philip O'Gorman

IBEC

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-00026922-001

10/03/2019

This complaint relates to the application by the Complainant as an Employment and Training support worker which was advertised by the Respondent on the 2nd October 2018. The Respondent’s case was that it had no case to answer and accordingly the case should be declared unfounded and dismissed. It denied any assertion that the complainant was discriminated against on grounds of disability. The Respondent submitted that the claim of discrimination was completely without merit. Its case was that there were simply several excellent candidates who presented for the role and had the necessary experience in all five required areas.

The Complainant’s case was that the Respondent discriminated against him by reason of his disability contrary to Section 8(1)(a) of the Employment Equality Acts 1998-2015 hereinafter referred to as “the Act”. The complainant submits that the application process for the Employment and Training Support Worker position in Offaly Local Development Company is weighted against persons with disabilities. His academic background is that he qualified as a carpenter in 1996, graduated with a Higher Certificate in Business from the National College of Ireland in 2006, a Bachelor of Business Studies (Honours) Degree from Carlow Institute of Technology in 2011, gained a Train the Trainer qualification in 2014, graduated with a Certificate in Autism Studies from University College Cork in 2015, the same year he also qualified as a Patient and Manual Handling Instructor. He is registered with The Teaching Council of Ireland as a Further Education Teacher since 2012, graduating from the National College of Ireland in 2018 with Post Graduate Diploma in Arts in Learning and Teaching (Further Education). He explained how he was diagnosed with Dyslexia in 2007, Asperger’s Syndrome (ASD) and Attention Deficit Hyperactivity Disorder (ADHD) in 2013, and Depression in 2014. He is currently in full time employment as a paid intern. He explained how his CV stated that he “was both Dyslexic and Intellectually gifted”.On the 25th September 2018 he requested a Job Description for the role of Employment and Training Support Worker, which I received on the 28th September 2018. On the 3rd October 2018, he submitted a Cover Letter & C.V. for this role based on the information contained in both the Job Advertisement and Job Description. On the 16th October 2018, he received a letter from the Respondent informing him that his application for the role had been unsuccessful "due to the high volume of applicants". Given his 13+ years as a Community Employment Supervisor, coupled with his academic qualifications, he was at a loss as to how this decision to not shortlist him for an interview had been reached. He rang the Respondent’s office twice that day seeking feedback, but he did not receive any. On the 18th October 2018, he submitted a Data Access Request to obtain his marking sheet, which he received on the 26th November 2018. From his understanding of the actual scoring sheet and the accompanying notes (both of which were unsigned & undated), he was scored on criteria that was materially different to those that had been provided to him in the Job Advertisement and Job Description. No individual scores were provided, merely a collective mark assembled from the marks of the two individual scorers using a pass/fail system. The Complainant submitted that the successful candidate ultimately emerged ahead of him due to the marks awarded under 2 criteria which he would characterise as subjective. From the evidence adduced, the Complainant submitted that the requirements of a prima facie case were met. He submitted that he should have been offered an interview when the Respondent was on notice of his disability. He espoused the policy of positive discrimination. He submitted that it made good business sense to have an organisation strengthened by diversity.

The CEO and SICAP Manager gave evidence. They explained that the Respondent actively works to promote awareness around Equality and it campaigns on behalf of marginalised groups. It facilitates and manages programmes aimed at 15 to 29-year olds in receipt of disability allowance who are experiencing ongoing mental health difficulties and mild learning difficulties. The witnesses explained how it had advertised for the role of Employment and Training support worker in September 2018. They confirmed that a matrix system was used to separate the applicant candidates into successful and unsuccessful for progression to interview stage. This marking exercise was based on categories of material relevant to the role and applicants were given a pass or fail in each relevant category based on the information available on the documents that the applicants had submitted. The role was within the SICAP (Social Inclusion and Community Activation Programme). The separation exercise was carried out by the CEO and the SICAP manager. To qualify for the interview stage of the process, an applicant was required to pass each of the five sections as required. In the complainant’s case he was unsuccessful in two categories namely working with unemployed and working with disadvantaged. The Complainant scored a pass mark in three out of the five sections. This is the same score as three other applicants who received the same result. Four applicants scored less than the complainant. Four applicants scored higher than the complainant and these four were not called for interview. Six successful applicants moved to interview stage having reached the required mark of five out of five. The Respondent submitted that the Complainant was unjustifiably demanding in his request for feedback. His data access request was complied with. The Respondents CEO responded with further clarification to him by letter 06.12.2018. The Respondents submitted that the Complainant had not discharged the burden of proof required by Section 85A of the Employment Equality Act. It submitted that the Complainant had merely speculated on the possibility of what had occurred. It relied on the case of Melbury – v- Valpeters EDA/0917 and the Southern Health Board –v- Dr. Teresa Mitchell DEE/011 and referred to further case law as regards to the burden of establishing a prima facia case in Cork County Council –v- McCarthy EDA/0821 and Brannigan –v- The Employment Tribunal in County Louth VEC [2016] IESC 40. The Respondent went through all six applicants who were called for interview and produced their redacted cover letter and CV. They submitted that the Complainant’s application was assessed in the same manner, using the same criteria as all the others About the Complainants request that he was not in receipt of reasonable accommodation, the respondent was a loss to understand this claim. The witnesses gave evidence that they had received training from the Disability Federation Ireland and they receive ongoing annual training. They were trained on how to accommodate disabilities and they had an awareness in this area. They had direct experience in dealing with several different disability programmes. They submitted they were used to dealing with individuals with disabilities and that they were not looking at a disability or not a disability, they looked at the applications on the face as submitted. They submitted that they were disability friendly.

The issue for decision is whether or not the Complainant was discriminated against by the Respondent on the grounds of disability in relation to his non-selection for interview.

Section 8(1)(a) of the Acts prohibits discrimination of prospective employees in relation to access to employment on any of the nine discriminatory grounds including disability in the instant case contrary to Section 6(2)(g).

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. When investigating a complaint, the role of the WRC includes undertaking an examination of any conflicts in the evidence presented by the Parties to arrive at reasoned findings of fact.

The Complainant was notified of his non-selection for interview on the 15th October 2018 and submitted his complaint within the requisite six-month time limit under Section 77 of the Acts, his complaint form being received on the 10th March 2019.

Unlawful discrimination in any circumstances and particularly in relation to a recruitment process is rarely overt and may not even be intentional but merely based on an assumption that a candidate would not have fitted into a particular role. Recognising the difficulties in proving discrimination, the UK House of Lords set out guidance in Glasgow City Council -v- Zafar (1998) 2 All ER 953 as adopted by the Irish Courts and employment fora including: “At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.'”

Therefore, the Complainant must establish a factual matrix from which it can be inferred that discrimination has occurred on the balance of probabilities. The fact that the Respondent had knowledge of the Complainant’s disability and did not short-list him for interview and/or recruit him is not enough in itself to constitute a prima facie case of discrimination.

In this respect, I am guided by the Labour Court in Client Logic t/a UCAL -v- Kulwant Gill EDA0817 where it held that "…in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result".

Having examined the various selection criteria and shortlisting matrixes coupled with the evidence presented to me on behalf of the Respondent, I am satisfied on the balance of probabilities that there is no clear evidence of unfairness or manifest irrationality in relation to the non-selection complained of by the Complainant.

The Complainant submitted that the Respondent failed to give reasonable accommodation to his disability. No substantive evidence was given to me to substantiate that claim. The Complainant submitted that he should have been assessed on the criteria given to him or he should have been advised of the different criteria that was being used and allowed to resubmit his application with the full knowledge of what scoring had to be used. I am satisfied that any change in the scoring system applied by the Respondent was applied equally to all the candidates who applied for the role and the Complainant was not treated any less favourable than any of the other candidates. The Complainant’s disappointment and frustration at his unsuccessful application with the Respondent is totally understandable. Had the Respondent been more proactive in terms of offering immediate feedback to the Complainant when requested or replied to his EE2 form it is unlikely that this claim would have been brought. In this respect the Respondent should consider offering immediate feedback to unsuccessful candidates in future competitions.

I find that this complaint is not well founded.

Selection for interview. Discrimination.