Complainant

Respondent

Parties

Thomas  Kearney

Wwetb

Representatives

Robin McKenna 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-00053712-001

15/11/2022

This complaint, made under the 1998 Act, relates to an unsuccessful application made by the Complainant for a teaching post with the Respondent in June 2022. The Respondent is an Education and Training Board.  An in-person hearing of the case took place on 15 August 2023.

In his Complaint Form the Complainant submits that he was discriminated against by reason of his disability and submits that the Respondent treated him unlawfully against him in getting a job.

In his Statement on the Complaint Form the Complainant submits that he applied for the role in the WWETB at the end of June 2022. He filled out the form and was honest about his recent health issues and he outlined his recent educational achievements.

On 6 July 2022, he was informed that he was not progressing further in the selection process. he submits that he was discriminated against when he was not called for interview because of his recent run of bad health and because he was in receipt of a disability allowance. 

The Complainant submits that he was qualified for the position on offer and had the requisite experience.  He believes he was more qualified to fill the post than the person eventually selected for it. He believes he has been treated unfairly by WWETB.

The Complainant gave evidence on oath at the hearing.

The Complainant submitted that he had the required experience for the post and should have been interviewed for it. He can see no good reason why he was not interviewed. The Complainant suspects he was not shortlisted for interview because he disclosed that he has a disability on the application form.

The Complainant gave evidence supporting the contention that he has a disability.  He agreed that the only knowledge the Respondent could have had about his disability at the time the selection process was underway was that which he included on the application form.

The Complainant could not put forward a comparator.

In cross examination the Complainant agreed that there was nowhere on the application form which sought medical information about candidates. The Complainant stated that the reason he had put in his medical information was to demonstrate that he was fit enough to do the job.

In conclusion, the Complainant stated that he feels he was discriminated against- there is no malice in what he is trying to do.  The Complainant feels that his qualifications could be back dated to take into account his previous experience.  He maintains he has a skillset and can teach. 

The Respondent provided a detailed written submission.

The Respondent refutes all allegations that it in any way discriminated against the Respondent by way of disability and in getting a job.  The Respondent submits that the Complainant applied for a position where he did not hold the requisite qualification for the required period and was consequently not shortlisted. For an unknown reason, for which there was no requirement or request, he disclosed a medical intervention from 2019 which was dealt with at the time and could no longer be defined as a disability.  It would appear from the Respondent’s view, that the Complainant is using this event, in part, as the basis for his discrimination complaint.

The Respondent submits that the Complainant has failed to outline a comparator to demonstrate how he believes he has been treated less favourably on the grounds cited.

The Respondent outlined the background to the complaint as follows.  On 14 June 2022, the WWETB posted a recruitment ad on its website for the position of “Instructor Carpentry & Joinery”, (a two-year fixed term contract).

The Respondent completed and submitted his online application for the role.  In the section relating to “Employment Record,” he included information about a medical incident he had experienced and his recovery form same.  The Respondent points out that there is no section on the application form seeking any information relating to the health condition of any prospective candidate.

Shortlisting of candidates took place.  Shortlisting criteria utilised to assist in the shortlisting of candidates were (i) National Craft Certificate in relevant trade and (ii) that they should have five years’ relevant post qualification experience.

Of the thirteen applications received for this vacancy, ten were called for interview based on the shortlisting criteria and the information provided on their application form. There were three candidates not called for interview.  One of candidates did not have a National Craft Certificate with two others not being able to demonstrate they had five years’ post qualification experience.  The Complainant was one of these two.

The Respondent submits that the use of minimum periods of post qualification experience is not unusual in WWETB. In this case the Complainant could not demonstrate he had the requisite work experience and it was for this reason and this reason alone he was not shortlisted for interview.

The Respondent submits that the Complainant has failed to present facts from which it can be inferred that he was treated less favourably than another person is, has or would be treated, based on the discriminatory ground cited. The Respondent refers to several cases to support this contention, including, Mary Margetts v Graham Anthony & Company Ltd, EDAA038 and Southern Health Board v Mitchell, DEE011.

The Respondent submits that no comparator has been put forward by the Complainant.

The Respondent submits that it does not discriminate against any employee, current or prospective, on any grounds. At present, at least 3.08% of those employed by WWETB have a disability.  This equates to 57 employees with various disabilities.  There is no requirement on staff to disclose any disability they may have, hence the reference to at least 3.08%.

Ms Anne-Marie Jones, HR Manager for Cultural Engagement with the respondent, gave evidence on affirmation at the hearing.

Ms Jones stated that the organisation has a robust Equality Policy. 

The witness explained the recruitment policy and process. Shortlisting is based only on the Application Form and those who do the shortlisting have had extensive training in selection and recruitment. 

In conclusion, the Respondent submits that the Complainant was not shortlisted for interview as he could not demonstrate he had the required relevant experience.  Crucially, he has failed to provide a comparator, nor has he been able to show how he was treated less favourably than a person without an alleged disability.   He has not put forward any medical evidence to support the existence of a disability.  He has not hit the threshold required to shift the onus to the Respondent to show that it did not discriminate against the Complainant, as is required.

The first question to be answered in this case is whether the Complainant has established a prima facie case.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “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 a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the Complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, it is not agreed that the Complainant is covered by the disability ground.  No primary medical evidence was adduced by the Complainant at the hearing to prove this assertion. Therefore, he fails the first test. 

For the sake of completeness, I have considered the second and third tests.

The second test; it is common case that he was not called for interview following the shortlisting process.

In considering the third tier of the test, I find the Complainant has failed to provide a comparator; the Respondent has highlighted that it has an Equality Policy which it submits it lives by and has demonstrated that it has a good number of staff who have declared disabilities.  I accept the Complainant was not shortlisted for interview simply because he did not have the requisite experience.  In summary, I find the assertion that the treatment afforded to the Complainant was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not been proven.

I find that the Complainant has not established a prima facie case and his complaint therefore does not succeed.

The Respondent did not discriminate against the Complainant on the Disability Ground.

Prima Facie, evidence, equality