Complainant

Respondent

Anonymised Parties

A Tech Worker

A Pharmaceutical Company

Representatives

 Self

Niamh McGowan B.L. instructed by Aoife Clarke Solicitor, A & L Goodbody Solicitors

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-00050222-001

03/05/2022

The Complainant commenced employment with the Respondent in September 2005. He was promoted to the position of Process Technician Level 3 and is still employed by the Respondent. Although based in one of the Respondent’s sites the Complainant has the ability to work across two of the Respondent’s sites. The Respondent describes the Complainant as a highly valued, well-trained, and very capable colleague. The Complainant earns €74,270.14 per annum (inclusive of a 33% shift premium).

The Complainant claimed that he was discriminated against by the Respondent in relation to his terms and conditions of employment and access to promotion, on the grounds of disability and gender within the meaning of those terms in the Employment Equality Acts 1998-2015. The Complainant did not sustain a financial loss nor was he seeking any form of financial compensation. He sought a finding based on the evidence that he had been subjected to discrimination in his employment.

The Complainant submitted a complaint form which contained the following endorsement (typos corrected and some punctuation added)

“For over 10 years I have been personally prevented from applying for promotional position with my area of work, I have been personally discriminated by Supervisor and Managers, my disability has been used against me in seeking promotion, where I have been labelled as difficult to work with, my disability was highlighted in [to]  a Manager, where I walk past people and do not say hello all the time or acknowledge them, as part of the reason for refusal to accept my application for promotion. I recently applied for a promotional position and was told by a Supervisor - don't be surprised if a female colleague gets the position because she is female as the company was to look inclusive. My last application for promotional position was not acknowledged, I received no communication regarding the position then heard another employee got the position.”

Subsequently, by email dated the 4th of August 2022 the Complainant made further written submissions. Many of the issues recounted in those submissions were also the subject matter of extensive evidence given by the Complainant at the hearing. The allegations dated back as far as 2016 and many concerned issues with a previous supervisor to whom the Complainant reported until the end of 2020 after which the Complainant’s current supervisor took over. These and later complaints were also the subject matter of an internal investigation which was carried out by the Respondent, the outcome of which the Complainant did not appeal. In addition, many of these allegations fell beyond the scope of the complaint of disability and gender discrimination made by the Complainant for the reasons set out below.

The Complainant was unrepresented throughout the adjudication process. This being the case it was necessary to afford the Complainant significant leeway to present and clarify his case. The Complainant supplemented his written submissions considerably in his evidence which was extensive and detailed. Moreover, in the course of the hearing the Complainant made some significant concessions in relation to the allegations which were made in his submissions and in his initial evidence.

The Respondent provided written submissions albeit that the Complainant’s submissions did not provide precise clarity on the legal basis of the claim being made.

The Respondent denied that the Complainant was discriminated against on grounds of disability and/or gender in promoting him or giving him training or in respect of any of the other issues raised by him. Further, the Complainant never sought any accommodation(s) for his disability, and neither was/were any specific accommodation(s) recommended by occupational health in respect of the Complainant. In those circumstances, the Respondent could not have failed to provide reasonable accommodations for the Complainant’s disability insofar as any such claim was being made.

Insofar as victimisation was alleged, the Respondent contended that the Complainant had not provided any details of any alleged victimisation and any victimisation by the Respondent was denied. 

The Respondent submitted that the Complainant had not met the threshold of establishing a prima facie case of discrimination on disability or gender grounds

The Respondent also relied on the time limits set out in the Employment Equality Acts such as to time-bar any and all complaints arising prior to the commencement of the six-month period before the date of the presentation of the claim (on the 3rd of May 2022) pursuant to Section 76 subsection (5) (a). It was denied that any reasonable cause had been shown such as to afford the complaint an extension of that time-period pursuant to Section 76 subsection (5) (b) and even if such an extension were granted, it was contended that the bulk of the complaints made by the Complainant also fell outside of this period. It was further denied any that there was a continuum of discrimination such as to engage the provisions of Section 77 (6A).

The Respondent cited the following authorities:

1 County Cork VEC v Hurley EDA 24/2011

2 Southern Health Board v Teresa Mitchell [2001] E.L.R. 201

3 Minaguchi v Wineport Lakeshore Restaurant DEC-E/2002/20

4 Melbury Developments v Arturs Valpeters EDA0917

5 HSE North Eastern Area v Sheridan EDA0820

6 Swan O'Sullivan v Counihan EDA1810

7 Senior Nurse v A Health Service Provider ADJ-00014052

8 An Employee v An Employer DEC-E2014-022

9 Health & Safety Manager v Manufacturer ADJ-00017622

10 Department of Defence v Barrett EDA 1019

Relevant Law in Relation to Discrimination Generally on the Disability and Gender Grounds

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

“a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”.

Section 6 (2) sets out the grounds in respect of which discrimination, as defined above is prohibited. Of relevance to the present case are grounds (a) the “Gender Ground” and (g) the “Disability Ground”.

Section 6(2)(a) of the Acts defines the discriminatory ground of gender as a situation where, as between two individuals:

“(a) that one is a woman and the other is a man (in this Act referred to as “the

gender ground”)”

Section 6(2)(g) of the Acts defines the discriminatory ground of disability as a situation where, as between two individuals:

                “(g) that one is a person with a disability and the other either is not or is a person

with a different disability (in this Act referred to as “the disability ground”)

Section 8 (1) paragraphs (b) and (d) of the Acts prohibit discrimination against an employee respectively in relation to conditions of employment and access to promotion.

Section 85A of the Acts makes specific provision in relation to the burden of proof in Discrimination Claims

Section 85A (1) of the Acts states that:

“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 the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.L.R. 201, the Labour Court concluded 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 these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The Labour Court has held in Hallinan v. Moy Valley ResourcesDEC-S2008-025 that to establish the relevant facts the Complainant must:

(a)    establish that he or she is covered by the protected ground;

(b)    Establish the specific treatment has allegedly taken place;

(c)     The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Similarly in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 where Equality Officer, Vivian Jackson stated:

“It appears to me that the three key elements which need to be established by a

complainant to show that a prima facie case exists are (i) that s/he is covered by the

relevant discriminatory ground(s), (ii) that s/he has been subjected to specific treatment

and (iii) that this treatment is less favourable than the treatment someone, who is not

covered by the relevant discriminatory, has been or would be treated.”

The way in which Section 85 A has been applied has been further clarified. In Cork City Council v. McCarthy, Labour Court, EDA0821 the Labour Court had the following to say about the process:

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Dyflin Publications Ltd. v. Spasic EDA0823, the foregoing passage was cited with approval.  In addition the Court had regard to the judgement of Mummery LJ in the U.K. Court of Appeal in Madarassy v Nomura International plc, [2007] IRLR 246. In that case a provision similar to Section 85A was considered and the Court said that the provision:

“does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

Approving of the foregoing passage, the Labour Court in Dyflin Publications held that:

“…in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the Complainant.

The Date of Actual or Constructive Knowledge of the Complainant’s Disability

An employer cannot discriminate against an employee on the basis of a disability of which the employer has no knowledge.

It was not disputed that the Complainant, who has been diagnosed with Autistic Spectrum Disorder (A.S.D.) (the Complainant’s choice of words), has a disability within the definition of that terms in the Employment Equality Acts. The date on which the Respondent was aware of this diagnosis was disputed.

The Complainant was initially unsure about the date when he himself was first aware that he potentially was on the autistic spectrum. However, he did recall that he experienced a bout of serious depression. Initially he thought that this could have been in 2016 but as the hearing progressed it became apparent that it was in or about June/July of 2017. The Complainant was admitted to Naas General Hospital, initially through the Emergency Department and then as a day-patient accessing psychiatric services. He was out of work on sick leave for a period of 6 weeks although it was established at the hearing that the Respondent was not made aware that the Complainant had undergone any psychiatric treatment and the Respondent was thus unaware of these circumstances.

The Complainant said that during the period of treatment in Naas Hospital, he was told by his treating Psychiatrist, that he was suffering from depression and that he was, to use the Complainant’s phrase, “borderline Asperger’s“ but that he did not meet the full criteria at that time. The Psychiatrist did not make a formal diagnosis as this would have required a full assessment which was not undertaken at this time. The Complainant said that he recalled recounting this medical advice to his then supervisor, to a named manager, a named HR staff-member and to the Respondent’s Occupational Health doctor.

The Respondent referred the Complainant to an occupational health physician on a number of occasions prior to and including in 2017. The Complainant accepted when it was put to him that there was no reference anywhere in any of occupational health documentation, to the Complainant being on the autistic spectrum or having borderline Asperger’s. The Complainant thought that a possible reason why there was no such mention in 2017 was because this was a simple “back-to-work assessment”. Otherwise, he was unable to explain why there was no mention in the occupational health documentation of his potential diagnosis. It was further put to the Complainant that it was not plausible that the other people whom he said he informed about the potential diagnosis made no note whatsoever of receiving this important and highly relevant information. Having heard the Complainant’s evidence and cross-examination, I find that the Complainant’s recollection is inconsistent and unreliable regarding the information which he said that he imparted to the Respondent, the times he imparted it and the persons to whom he imparted  it and I find on the balance of probability that the Complainant did not share the information, imparted to him by his psychiatrist, with any servant or agent of the Respondent in the manner and at the time alleged. It follows that no actual or constructive knowledge of the Complainant’s diagnosis can be attributed or imputed to the Respondent at this time. There was no further evidence or submission by the Complainant that the issue was raised again in 2018 or 2019 and I similarly find that the Respondent had no actual or constructive knowledge of the Complainant’s potential diagnosis during this period. This includes the evidence regarding the previous supervisor’s observations regarding the Complainant not saying hello to people in the corridor as alluded in the WRC Complaint Form and detailed in evidence at the hearing.

In August 2020, the Complainant’s previous supervisor became aware that the Complainant was experiencing difficulties. It is common case that the Complainant did at that time mention the fact that he had been referred by his G.P. for an assessment to ascertain whether he had Asperger’s Syndrome. The supervisor made a referral to the Respondent’s occupational health doctor and the assessment took place, but no report was issued following this assessment. The Respondent at the hearing explained that this was because the occupational health doctor was awaiting further information from the Complainant’s doctor including confirmation of the diagnosis and details of any accommodation measures as might be appropriate. The Complainant accepted that this was the case and he also accepted that the information was not supplied. The reason he gave for this was that he was unable to fund the formal assessment process at that time.

The Complainant raised a number of issues by way of a formal information request Form ES1 which he served on the Respondent on or about the 17th of January 2021. Such a form is in fact designed to be used in the context of the Equal Status Acts 2000-2015 and thus it was not the correct form for the Complainant to use. In any event the endorsement to the form contained a statement, extracts of which (with typo corrections and punctuation added) are as follows: 

“I have been discriminated on the following grounds.

Due to my personality traits of [being] introverted which is a result of my childhood, I do have interaction issues with people from time to time but I learn from them, I discuss them with my counsellor and mentor….These issues have been brought back constantly as an issue years later

…As a result of my childhood I am emotionally underdeveloped. When I was [being] bullied by a Supervisor on shift over a period of some years it eventually came to [a] head which resulted in a serious risk of self harm. As a result with my counsellor I discovered at the time my emotion age was around 7 yrs old in how I deal with things. I have informed all my past supervisor[s] regarding this. Over the years this age has grown. I have also decided to stand up for myself more and not to take this kind of treatment any longer”

The Respondent’s HR Partner gave evidence to say that this was the first time she had become aware of any issue regarding the Complainant’s condition. She met with the Complainant and organised a referral to occupational health without delay. The Report issued following this assessment confirmed the doctor’s view that the Complainant had “Asperger’s traits”. The doctor formed the impression that the Complainant “can be quite black and white in his thinking, and likely unemotional and slightly detached in this decision-making, particularly when it involves others and making criticisms of others”. A recommendation was made for the Complainant to be referred for further assessment with a view to establishing a diagnosis and to identify what supports [could] be put in place to assist him at work”.

At this time Respondent assigned a support worker to assist the Complainant through the grievance investigation process. Counselling services were also accessed by the Complainant paid for by the Respondent via the long-standing and pre-existing employee assistance programme.

The Complainant eventually received a formal diagnosis of Autism as set out in a letter the Adult Autism Practice dated the 28th of February 2022. He presented this document to his present supervisor and a further referral to occupational health was arranged. The Complainant did not at that time or since request the Respondent to provide him with any further or other measures to accommodate his diagnosis and he specifically confirmed at the adjudication hearing that his case did not touch or concern the issue of reasonable accommodation.

Substantive Complaints

Arising from the finding and the reasons therefore as already made, I cannot consider any allegations of disability discrimination which might have arisen or been implied from any of the events prior to August 2020 at the earliest. It was evident that the Complainant was seriously aggrieved in relation to a number of issues which arose before that date. These (along with other issues arising after August 2020) were the subject matter of a formal internal grievance procedure. The pre-August issues were flagged in the Form ES1 served in January 2021 and subsequently in a series of letters which details the formal complaint. The statement (quoted above) from the endorsement to the ES1 Form is strongly suggestive of the Complainant’s desire to re-visit and in effect to seek findings, through the present adjudication process, in relation to those past issues in a retrospective manner with the benefit and insights provided by the diagnosis of Autistic Spectrum Disorder, despite the fact that no such diagnosis or even potential diagnosis was known to the Respondent at the material times. The fact (as found) that the Respondent was not aware of any disability prior to August 2020 precludes any investigation into or findings concerning any possible alleged discrimination arising before this time. 

As I have already found, I must exclude from consideration any and all complaints and evidence which predate the first disclosure of any potential diagnosis to the Respondent which, I have found, first took place in August 2020. With regard to the matters which arose following that date, the Complainant raised the following issues:

Refusal by Supervisor to Support Application

The Complainant said that he started reporting to his present supervisor in January 2021. In January of 2021 the Complainant and his present supervisor had a discussion where the Complainant said that he was intending to apply for a vacancy for an RFT Position ( a technical acronym) and he asked whether he would he receive the supervisor’s support in relation to this application. The supervisor said that in the light of the Complainants reviews from 2020 he could not support the Complainant. This specific issue was a component part of a formal grievance made by the Complainant by letter dated the 24th of February 2021 and supplemented by an addendum including an additional complaint dated the 20th of August 2021. This complaint was handled initially informally but the Complainant requested that it then be formally investigated. An investigation was carried out which resulted in an investigation report which was issued to the Complainant on the 30th of November 2021.

The Complainant argued that the end of year review in 2020 carried out and documented by his previous supervisor were held against him and he further argued that the reviews themselves were the product of an attitude towards him by the previous supervisor which amounted to discrimination against him on the disability ground. The Complainant explained that the reviews documented social interactions between himself and his colleagues in a manner which was unfairly critical of the Complainant and portrayed him a negative light.

I note that this particular complaint was investigated, and the following finding was made by the investigator in the report dated the 30th of November 2021. Where relevant and with redactions, the findings on this issue were as follows: 

“There is no evidence of the interactions with the [colleague] being recorded in a negative light in the 2020 performance review or more generally of being used to portray [the Complainant] in a negative light…

…Following review of the criteria for the RFT role advertised in January 2021 and having regard to the content of [the Complainant’s] documented end of year performance review for 2020, the decision not to endorse his application was not objectively justified. As it appears other, not documented evidence, was relied upon to justify this decision, that should have been discussed with [the Complainant] at the time and he should have been afforded an opportunity to respond to that feedback before any final decision was made.”

This finding is to the effect that the Complainant had not been treated fairly but this is not the same as a finding that he had been discriminated against which said finding was not made. The Complainant did not appeal the foregoing or any of the findings made in the Investigation Report of the 30th of November 2021.

The Complainant at the hearing wanted to make it clear that he had no complaint relevant to the present case against his present supervisor. He pointed out that he had then and continues to have an excellent relationship with this supervisor. He candidly offered the view that he did not blame his present supervisor for declining to support his application in January 2021 as he had “been handed” a mess from [the previous supervisor]. [The Complainant used more colourful language to describe the mess.] I note that during the hearing (on Day 3), the Complainant in cross-examination stated that he accepted that there was no discrimination between 2018 and 2020. In the light of this concession and given the Complainant’s reluctance to attribute blame to his present supervisor I find that no reasonable inference of discrimination on the part of the Respondent can be drawn from the facts as found or admitted when viewed in their totality.

My conclusion, therefore, in relation to the year-end review which took place in December of 2020 and the refusal of the present supervisor to support the Complainant’s application for the RFT position in January 2021, is that the available evidence, when viewed in its proper context, does not support an inference of discrimination on the disability ground.

Challenges to Appointments

The Complainant identified two appointments made by the Respondent in November 2021 and April 2022.

His challenge to these appointments was the subject matter of clarification provided by the Complainant at the hearing. Such clarification was necessary as it was unclear what the basis of the challenges to these appointments were. The Complainant clarified that he was alleging gender discrimination in relation to these appointments and not disability discrimination.

The First Appointment

The First appointment was made following a competition in which the Complainant participated. In that competition three men and one woman applied. The woman was appointed. The second appointment took place in April 2022. The position was advertised internally, and the Complainant applied for the position, but his application was not acknowledged, and he was not interviewed for the position. An appointment of another individual was made. This other candidate was a man.

The Complainant confirmed that his complaint in relation to this competition was based solely on the gender ground and not the disability ground.

The Complainant made two principal assertions in relation to this competition:-

That his skills and process-knowledge which are the backbone of the job, far exceeded those of the successful candidate who was female. Her predecessor in the job he alleged, was also female.

That a comment had been made to the Complainant by his present supervisor to the effect that that he should not be surprised if a female got the job as the Respondent wanted to show how inclusive/diverse it was.

In cross-examination the Complainant accepted that the previous person who held the position the subject matter of the competition was in fact male.

In relation to the alleged comment attributed to the Complainant’s Supervisor, the latter gave  evidence on affirmation, called by the Respondent. This individual could not recall making the comment. It was put to the Complainant that this individual was not involved in any way with the competition itself and the Complainant did not contest this assertion. Having heard the evidence of the supervisor I find that if the comment or any similar comment was made by that individual, it was merely an expression of an opinion from an individual who had no involvement in the recruitment process and cannot reasonably be construed as evidence of the existence or application of a discriminatory or gender-preferential recruitment policy on the part of the Respondent. In such circumstances it is unnecessary for me to make a finding of fact as to whether this comment was made and I decline to do so.

The Respondent’s HR Lead gave evidence on affirmation as to the manner in which the competition was organised and conducted. The conduct of the Competition was delegated to a Hiring Manager who also worked with and consulted an expert in the 16PF process.  Before being admitted to competition, candidates were first assessed as to their eligibility by reference to the specifications for the job. It was at this stage where the candidates’ skills and process-knowledge were considered to assess the eligibility of each to participate in the competition. As part of this process, the Complainant’s skills and process-knowledge were examined and deemed sufficient to meet the eligibility criteria as were those of the successful candidate.  This assessment process for eligibility however was not a competitive process in that the skills and process-knowledge of a candidate were either sufficient to deem that candidate eligible or they were not.

Once the eligible candidates were identified, the Competition then had three components or modules:

A technical assessment process known as “16 PF” – 10% of overall marks available;

Role Play – 30% of overall marks available;

Interview – 60% of overall marks available.

The Respondent provided the job description and a full breakdown of all the scores allocated to candidates in the competition. The Complainant had no issue with the outcome of the 16 PF process where his score matched that of the successful candidate, and they finished joint first in this module. He expressed disappointment with his scores in the role play and the interview process. However, he agreed that the feedback contained a reasonably accurate summary of the response he gave in his interview. The Complainant was somewhat sceptical as to the value of the role play exercise chosen but he did not asset that this process was discriminatory.

The Complainant’s contention arising from the foregoing allegations was that he was subjected to discrimination on the ground of his gender in relation to the failure on the part of the Respondent to appoint him to the position. Although he did not specifically argue the point this way, it is implicit from the argument that the Complainant sought to rely on the allegations to engage the provisions of Section 85A such that the facts relied on would raise an inference of discrimination in this instance on the gender ground. Were that to have been established it would then fall to the Respondent to adduce evidence to rebut the inference or presumption of discrimination.

In the present case the following are the relevant factual issues:

The Complainant is male and the successful candidate is female. This fact was not contested

There were four candidates for the position. One woman and three men. Following the competition an order of merit was drawn up. The successful (female) candidate came first and she was appointed to the position. The next in line was a male candidate other than the Complainant.

Regarding the Complainant’s assertion that his range of training and experience was superior to that of the successful candidate. In relation to this issue the Respondent, whilst not specifically admitting this fact, said that the Complainant’s level of experience and skill was given full and adequate consideration. It was explained that the competition had several stages. The first stage was the eligibility process, and this stage required those responsible for the selection process to consider carefully the skills and experience of all the candidates applying for the position. This process involved a detailed consideration of the overall skillset of each individual candidate with a view to ascertaining whether each candidate met the minimum criteria to be deemed eligible. The point was made that this process was not competitive as such insofar as a candidate was either deemed eligible or not by reference to his/her own skillset. It was not at that stage a comparative or competitive exercise in that the eligibility was measured against the criteria and not by reference to the other candidates applying. The effect of this is that if a candidate was deemed eligible by virtue of his/her own skillset then he/she was then admitted to the competition. The Complainant contended that his skillset should have given him a competitive advantage in the competition and in effect he could not understand why someone with inferior skillset could have succeeded. However, the evidence established that the competitive aspect of the competition was a different stage and that stage was governed by criteria other than process knowledge and skillset. The Respondent provided detailed documentation regarding the breakdown of the available marks as well as the actual marks awarded in each of the three categories. It was clear on an analysis of these marks that the interview process was where the successful candidate scored higher than the Complainant.

Interviews were conducted and candidates were awarded marks based on the subjective impression which they made at interview in response to set questions. The same questions were put to all candidates and marks were allocated based on the responses received. In the Complainant’s case he was marked lower than the successful candidate based on his interview responses. The Complainant indicated at the hearing that he did not agree with the mark awarded to him at interview but he accepted that he was not asked any questions at interview which were discriminatory on the gender ground and he further confirmed that he was not actually disputing the scores allocated to him or the other candidates.

Applying the dicta of the Labour Court in Dyflin as quoted above, I find that the evidence adduced by the Respondent shows that, when viewed in their proper context, the facts relied upon by the Complainant in relation to this competition do not support the inference of discrimination for which he contends. Accordingly, I find the Claim of discrimination on the gender ground in relation to the conduct and outcome of this competition cannot succeed.

The Second Appointment

The Complainant’s case in relation to this appointment was as follows: the position was advertised on an internal website and the Complainant submitted an application. He was not interviewed for the position and a male colleague was appointed in or about  April 2022.

The Respondent’s case was that the position was advertised in error in circumstances where a decision had been taken at management level that a direct appointment would be made to the vacancy and that the position would be given to the person who had finished in second place in that competition. This decision was made on the basis that a similar practice had been adopted in the past and was to be followed on this occasion. The job to be filled on this occasion was similar to the one which had been the subject of the previous competition and that competition had taken place within six months of the second appointment. Even though this direct appointment had been approved, an error was made within the Respondent’s organisation whereby the Recruitment Team advised the Hiring Manager that in order to process the appointment of the individual who had placed second in the first competition, a post had to be created on the internal advertising system for which that candidate was to be asked to apply. In fact, this advice was incorrect and there was in fact no necessity for the vacancy to be advertised in this manner. However, the error did have consequences in that the Complainant applied, as did two other colleagues. None of these applications was considered by the Hiring Manager who made the appointment based on the order of merit drawn up following the first competition. The Respondent put to the Complainant that efforts were made to explain this situation to him when he complained about it and the Complainant explained that he did not wish to engage at that stage as he had already initiated the present complaint and he thus deemed it in appropriate to discuss an issue which was the subject matter of his formal complaint.  When the circumstances (as outlined above) that led to the appointment were put to the Complainant at the hearing, he accepted that the vacancy was mistakenly advertised internally, and that the appointment was not discriminatory.

It follows from the findings above that the complaints of discrimination on grounds of disability and the complaints of gender discrimination cannot be sustained.

The Respondent did not discriminate against the Complainant.

Employment Equality Act, Sections 6, 8, 76 (5) (a), 76 (5) (b), 77,77(6A), 79, 82 85A - Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.L.R. 201 - Hallinan v. Moy Valley ResourcesDEC-S2008-025 - Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant - Discrimination on Disability Ground – Cork City Council v. McCarthy, Labour Court, EDA0821 - Dyflin Publications Ltd. v. Spasic, EDA0823 - Madarassy v Nomura International plc,[2007] IRLR 246 – Disability Discrimination – Autistic Spectrum Disorder – Asperger’s Syndrome - Gender Discrimination