Complainant

Respondent

Anonymised Parties

A Complainant

A Retail Organisation

Representatives

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-00030665-001

04/09/2019

The complainant is alleging that he was discriminated against on grounds of disability in relation to access to a Graduate Programme with the respondent organisation. The complainant further states that he was not provided with reasonable accommodation. The complainant’s disability is dyslexia and dyspraxia. The complainant states that he completed an online application form for a Graduate Program with the respondent on 16 April 2019. The complainant submits that when he sent it, he got a Gamified Assessment consisting of four games. The following day the complainant got an e-mail stating that his application was unsuccessful based on Gamified results. The complainant asserts that the respondent did not provide any reasonable accommodation despite the fact he had disclosed on the application form that he had dyslexia and dyspraxia. The complainant submits that the respondent fails to acknowledge that people with dyslexia/dyspraxia/specific learning difficulties could have problems completing Gamified Assessment. The complainant contends that there are difficulties due to the way in which they process written and visual information for example block tests and sequences will all start to look the same in repetition to a person with dyslexia hence extra time is of no benefit with these tests. The complainant asserts that there are no offers of reasonable accommodation before the test or during it.

The complainant submits that if the respondent had provided a clear explanation about what each test entailed beforehand, then he could have brought any potential problems to the respondent’s attention before he did the test, but this was not possible as the online system goes straight into the test. The complainant maintains that the online system forces the dyslexic/dyspraxia applicant to take a test which they would more than likely fail due to specific learning disability which constitutes direct discrimination. The complainant states that during his online application, there was no mechanism in sight to ask for any accommodations. He states there was nothing during the test to enable a person to contact the respondent to be allowed extra time. The complainant states that he has been discriminated against on grounds of disability and that he was not provided with reasonable accommodation.

The respondent rejects the complainant’s allegations and submits a preliminary argument that the complainant has not discharged the burden of proof of establishing a prima facie case of discrimination as required by section 85A of the Employment Equality Acts. The respondent states that a considerable amount of case law exists to elaborate on the onus Section 85A places upon a complainant who is alleging discrimination. In Melbury v. Valpeters EDA/0917 it was stated that the complainant must establish facts from which discrimination may be inferred and that it is required to 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 this regard, the respondent also refers to the case of Southern Health Board v. Dr. Teresa Mitchell DEE 011, Cork City Council v Kieran McCarthy, EDA0821 and Margetts v Graham Anthony & Company Limited EDA038.

The respondent submits that it is an Equal Opportunities employer and has a policy in place to ensure that everyone is welcome in the respondent’s business. The respondent states that it is committed to ensuring that during the recruitment process, applicants are given the same opportunities as everyone else. In addition, where a different approach is required this is applied i.e. reasonable accommodation. For the purpose of the within claim, the respondent submits that this policy was applied in full.

Where a role in the respondent’s company becomes available there is a process that follows.first part of this is the online application where the candidate fills out an online application. As part of this step the candidate provides general applicant details like name, address, etc. If at that stage the candidate does not meet the specified criteria, then the application is automatically rejected by e-mail. The complainant completed this step and at that stage made the respondent aware of his disability. The complainant met the specified criteria and his application was progressed to the next level i.e. Gamified Assessment.

From the outset of the Gamified Assessment the complainant was offered access to reasonable accommodations (all candidates have this option). This allows candidates who may have difficulties carrying out the assessment an extra 25 % of time to complete the same assessments as the original version. In his claim form to the WRC the complainant alleges that he was not provided with reasonable accommodation which is simply not the case. The complainant chose not to accept the offer of reasonable accommodations and chose not to inform the respondent that he anticipated having any difficulties with the online assessment tools in advance, and thus providing the respondent with the opportunity to assess and provide further reasonable accommodations; and to engage with the additional supports offered through the online assessment pages themselves. The company did ask candidates if they require assistance for a disability and whilst the complainant did mention that he had dyslexia and dyspraxia, he did not provide the respondent with any details of any assistance that he would require throughout the process.

The respondent contends that the scoring for the gamified assessment ranges from 0-1000 and there is an automatic pass/reject threshold applied to all candidates on the gamified assessment of 487 and above. Candidates below the pass rate are rejected by e-mail after they fully submit their application. Candidates who are on or above the pass rate advance to the next stage of the recruitment process.

The complainant scored below the pass rate and was not advanced to the next stage. The respondent asserts that this is in no way linked to his claim of discrimination. The claimant was not successful in his online assessment and “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”. In conclusion, the respondent reiterates that the complainant has not provided facts from which a prima facie case of discrimination can be established and that there is no case to answer and accordingly the matter should be dismissed.

I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts 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.”

Disability is defined in Section 2 of the Acts:

‘‘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;

I am satisfied that the complainant’s disability which is Dyslexia and Dyspraxia comes within the definition outlined above.

I note that the first part of the process was the online application where candidates were requested to complete same. While the complainant submitted in his application form that he had a disability, he did not provide the respondent with any details of any assistance that he may require during the process as he was requested to do so in the application form. I note that the complainant met the specified criteria and his application was progressed to the next level – the Gamified Assessment. I note that from the outset of the Gamified Assessment, the complainant was offered access to reasonable accommodation as indeed all candidates had this option. This process allowed candidates who may have difficulties carrying out the assessment an extra 25% of time to complete the same assessment as in the original version. I note that the complainant scored below the pass rate in the Gamified Assessment and his application was not advanced to the next stage. Having carefully considered the circumstances of the within claim, I am satisfied that the complainant did not choose the option of the assessment which allowed for extra time to complete the Gamified Assessment. I am also satisfied that the complainant did not provide the respondent with details of reasonable accommodations which he would require to complete the assessment as was requested by the respondent on the initial application form. Therefore, on balance, I find that the complainant has not established a prima facie case of discrimination on grounds of disability. I further find that the complainant has not demonstrated that the respondent has failed to provide him with reasonable accommodation and consequently his complaints fail.

I find that the complainant has not established a prima facie case of discrimination by the respondent on grounds of disability and therefore his complaint fails.

Disability, reasonable accommodation, no prima facie case