Complainant

Respondent

Parties

Adrian Caulfield

New Frontiers, Athlone Institute of Technology (now Technological University of the Shannon Midlands Midwest)

Representatives

  In person

Michelle Ní Longáin , Byrne Wallace Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00032602-003

28/11/2019

In this complaint the Complainant alleges that he was discriminated against by the Respondent on prohibited grounds of disability and religion.

The Adjudication Process

This complaint commenced as a discrimination Equal Status Acts (ESA) complaint and an Industrial Relations Complaint. As the Complainant was not an employee of the Respondent, the IR complaint was discontinued and a ESA complaint was pursued by the Complainant.

On the first hearing day of the Adjudication (20.10 2021) the Complainant applied to join a co-respondent to the complaint. The Adjudication Officer (AO) advised the Complainant that this procedure is a court process that the WRC does not have jurisdiction to order. She found that the actions that the Complainant sought to impugn (ie the service that the Respondent provided to the Complainant) was provided by the Respondent alone and was not provided by the proposed co-Respondent. On these bases the Complainant’s application to join a co-respondent was refused and the complaint was thereafter pursued against the Respondent alone. The Complainant raised this matter again on day 4 of the Adjudication but the AO advised that this matter had already been determined.

On Day 2 of the Adjudication (28.3.2022) discovery of information was requested by the Complainant and the parties provided submissions on this. Discovery was made which the Complainant claimed was inadequate. Following the hearing a freedom of Information request was then made by the Complainant, which was complied with by the Respondent.

On day 3 of the Adjudication (21.2.2023) the Complainant sought an adjournment on health grounds which was consented to by the Respondent. The Respondent referred to new submissions that had been filed by the Complainant and submitted that the complaint was evolving and changing as time went on. The AO ruled that, given the Complainant’s health concerns that the hearing should be adjourned for six months and that the re-convened hearing should take place remotely and take place in the afternoon to take account of the Complainant’s needs. The hearing was then adjourned for a year.

On day 4 of the Adjudication (20.3.2024) the substantive hearing commenced and the evidence, by way of affirmation, of the Complainant was heard. At the conclusion of his evidence the Respondent representative applied for a direction that the evidence of the Complainant had failed to establish a prima facie complaint of discrimination on either ground (religion or disability) and the Respondent requested that the complaint be determined as one which was not well founded. The Complainant objected and submitted that a prima facie case of discrimination had been proven. The Complainant requested that the Adjudication proceed, that the evidence of the Respondent be heard and that he be allowed to cross examine the Respondent witnesses.

Substantive Complaint

On 17 February 2023, four days before day 3 of the Adjudication, the Complainant filed a 56-page submission with a 300-page booklet of appendices. He stated that this comprehensively set out his case and requested that this documentary evidence be considered together with his sworn oral evidence for the purpose of reaching a decision on this complaint.

On 20. 3.2023 the Complainant gave oral evidence, under affirmation, as follows:

1.       For the purpose of the Adjudication investigation, the Complainant identifies his disability as being anxiety and an adjustment disorder following trauma.  The Complainant identifies his religion as being Christian.

2.       The Complainant applied for and participated in an entrepreneur training programme, Phase 1 of which was delivered in June/July 2019 by the Respondent on behalf of Enterprise Ireland. The course was delivered in (then) Athlone Institute of Technology (now Technological University of the Shannon Midlands Midwest.)

3.       The Complainant alleges under his complaint of discrimination that he was subjected to four different incidents of prohibited discrimination, which he synopsised as follows:

Alleged Complaint (i) – Workshop on 24 July 2019.

On 24 July 2019 while attending a workshop in Athlone IT, the programme manager criticised him ridiculed him, harassed him and victimised him, during his presentation in front of the rest of the workshop participants. The Complainant contends that this treatment was because of the Complainant’s disability.

The Complainant accepts that he is not able to prove that on 24 July 2019 this programme manager knew of his disability however the Complainant submits that it was highly possible that he knew it, given the Complainant had previously disclosed his disability to Maynooth University when he studied there and because the Athlone IT programme was designed for Athlone IT and Maynooth University participants, the programme manager would have had access to information about his disability. He also contends that this harassment and victimisation legally is a stand-alone offence that does not require a causal connection with any of the nine prohibited grounds. During his presentation the programme manager undermined him. He was dismissive and bullying towards the Complainant.

Alleged Complaint (ii) Refusing him entry to Phase 2 of the course

Following the conclusion of phase 1 of the programme, on 30 July 2019 the Complainant emailed the programme manager informing him that “I took onboard what you said in relation to my pitch, and I agree with you. You are 100% right, the message did get lost, I tried to overcomplicate my original message, I did not stick-on point and as a result the presentation suffered… Once again many thanks for your advice.”

He went on to explain that he had “great difficulty presenting due to side effects of certain medications that interfere with memory and cognition which requires him to read from notes to aid in such situations…”

He stated that he was “not looking for any favourable treatment as he was trying not to let this disability hold him back.”

The Complainant submits that from receipt of this email on 30 July 2019 on the programme manager could not deny knowledge of the Complainant’s disability (ie anxiety and an adjustment disorder.)

After this, despite the programme manager’s reply, which offered him support, no supports whatsoever were offered to him, and no proactive steps were taken to assist the Complainant in his application to join Phase 2 of the programme. The deadline for the Phase 2 course was 23 August 2019 and the Complainant, without getting any assistance from the programme manager, filed his application on that date within time. His application form referred to supplemental material that would be sent separately however the Complainant then had difficulty uploading the supplemental material and was again given no help. Eventually the Complainant was able to upload the supplemental material on 25 August 2019, which was received and accepted by the Respondent.

On 12 September 2019 the Complainant was advised by letter that his application to Phase 2 of the course had been unsuccessful.

He believes that this refusal occurred because he had disclosed his disability to the programme manager, who was a member of the deciding panel. He believes that his application was very strong. It was much more developed and more detailed than other applicants and yet he was not allowed to proceed to Phase 2. The criticisms of his application which are identified in the Evaluations Summary Document (furnished within the Respondent’s submissions) are incorrect and do not stand up to any scrutiny.

To corroborate his case that the refusal of his application was due to his disability and not on the merits of his application is, arising from his FOI request, the Complainant learned that the supplemental material that he had sent to the panel on 25 August 2019 was never in fact considered by the panel despite assertions by the Respondent that they had considered this material. This evidences firstly that the Respondent were dishonest when they said that the material was considered and secondly it shows that panel pre-judged his application without ever in fact considering it. He alleges that the reason for this, could only have been because of his disclosure of disability to the programme manager, who was a member of the deciding panel. It is inconceivable that this knowledge did not influence the panel’s decision to not even read his application. His application was pre-judged negatively and given the high quality of the application, this could only have been due to his disability.

Alleged complaint (iii) Failure to make Reasonable Accommodation

His third claim of discrimination is that the Respondent failed to make reasonable accommodation for his disability, which was known to the programme manager because of his email dated 30 July 2019 to the programme manager. Even though the programme manager advised him that he would receive “whatever support he needed”, not only was no support provided but he was treated in a curt and unhelpful manner by the programme manager who told him that support for future pitches would be made available “if you are invited” which was cold and conditional. The conditionality of this support made the Complainant feel judged adversely.  This adverse treatment evidences the fact that the Respondent failed to provide reasonable accommodation for his disability, which was a difficult admission for him to make. The least that the programme manager should have done was to contact him to ask him openly if he needed any help.  The programme manager did not contact him at all to see if he needed support in the three-week period between the disclosure of his disability on 30 July and the deadline of the Phase 2 application was due in August 2019.  This inaction was a failure to make reasonable accommodation for a known disability.

Alleged complaint (iv) Discrimination on religious grounds

The Complainant fourth and final allegation of discrimination is on grounds of religion whereby he alleges that, following the workshop session on 24 July 2019, the programme manager offered participants, including him, a lift home in his car, which the Complainant contends was an overture and was inappropriate. This together with other overtures that were unwanted by the Complainant discriminated against the Complainant being a person of Christian belief whose faith condones homosexual relationships. The Complainant alleges that he was discriminated against by the programme manager on grounds of his religious belief, because he was exposed to these unwanted advances.

Following the conclusion of the Complainant’s evidence the Respondent’s representative made an application that the Complainant’s complaint had not met the prima facie test that discrimination had occurred.

On behalf of the Respondent, it was submitted that an assertion or belief of discrimination does not equate to proof that prohibited discrimination has occurred. The Respondent submitted that the complaint was unproven and misconceived.

In synopsis the Respondent submits as follows:

1.       While the Complainant claims to have a disability in the form of anxiety and an adjustment disorder, no evidence of this was presented during the Adjudication process.

2.       While there is one ESA complaint there are four alleged instances of alleged discrimination to which the Respondent responds as follows:

Alleged complaint (i) The workshop on 24 July 2019

The Respondent submits that the Complainant is legally incorrect in his argument that harassment and victimisation is a stand-alone offence. Under the ESA harassment and victimisation are not a stand-alone offence. The complaint is of prohibited discrimination and for such a complaint to succeed the impugned conduct must be proven to have occurred because on prohibited basis. An ESA complaint is not one of adverse treatment per se (which the Respondent denies) rather it is adverse treatment, specifically the refusal of a service, on a prohibited (and therefore discriminatory) basis.

The Complainant concedes he is unable to prove that on or before 24 July 2019 (the workshop) that the programme manager knew about his disability. At its height the complaint is that the programme manager could have had access to the medical records from when the Complainant attended Maynooth University, but, even if this possibility of access were accepted, this falls short of proving that the programme manager accessed these records and therefore knew about the Complainant’s disability. It is denied that the programme manager knew about the Complainant’s alleged disability.

The Respondent submits that the facts as alleged by the Complainant under complaint (i), falls short of proving facts from which prima facie finding of discrimination may be found.

Alleged Complaint ii - The refusal to admit the Complainant to the Phase 2 of the course.

The decision to not admit the Complainant to Phase 2 of the course was a decision that was taken by an Admissions panel.

The Complainants contention that the programme manager was on notice of the Complainant’s disability - because of an email that he sent the programme manager on 30 July 2019  - is not accepted by the Respondent as containing information that would inform the Respondent panel of the Complainant’s disability.

It is accepted by the Respondent that this email was written by the Complainant and was received by the programme manager. However the disability that the Complainant now contends that he has and was discriminated against for (anxiety and adjustment disorder) was not identified in this email.

This is a recharacterization of what this email stated.

This email was an explanation by the Complainant, following the workshop session on 24 July for the reasons why his presentation was below par. In this email the Complainant referred to medications which he was on which interfered with memory and cognition which required him to read from his notes to aid in such situations. There is no reference in the email to the Complainant suffering from an anxiety or adjustment disorder. It is not accepted, despite what the Complainant asserts, that this email put the Respondent on notice that the Complainant had an anxiety and adjustment disability. And for this reason, it is not accepted that the Admissions panel - who refused the Complainant entry onto Phase 2 - did so because the Complainant had an anxiety and an adjustment disorder disability. The first time that the Respondent ever heard of the Complainants anxiety/ adjustment disorder disability was on Day 1 of this Adjudication.

When the decision was made to not admit him (and many applicants were not admitted – it being a highly competitive phase of a competitive course) the programme manager did not know about his disability and the panel did not know about his disability.  

The decision by the Panel was made based on the quality of the applications. Getting a place on Phase 2 of the course did not follow from the participation of Phase 1. That is why the programme manager replied in the conditional way that he did to the Complainant’s email of 30 July 2019 (“if you are invited.”) It could not be guaranteed that the Complainant would necessarily get a place on Phase 2. The highly competitive nature of the admission process was explained to the Complainant in the Respondent’s refusal letter to him in September 2019.

The Respondent accepts that the programme manager was a member of the deciding panel but the decision was taken by the panel based on a set of admission criteria. The Applications Evaluations Summary Report shows that the criteria for entry onto Phase 2 was applied to all candidates.

The fact that this decision was taken in the absence of considering the Complainant’s supplemental material is regrettable (and the Respondent accepts that this material should have been considered by the panel and was not) but the supplemental material did not remedy the deficiencies in the Complainant’s application. Moreover, while this was an inadvertent oversight which should not have happened, this does not prove that the decision to refuse him entry to Phase 2 was because of his disability, which again the panel had no knowledge of. The Respondent submits that there is an evidential causal link missing in this regard.

The Respondent accepts that the email sent by the Complainant to the programme manager on 30 July 2019 included the word “disability” but in that email the disability being referred to was the Complainant’s challenges in presenting pitches (because of memory loss due to medication) it had nothing to do with anxiety or an adjustment disorder.

And on receipt of that email the programme manager replied that (subject to the Complainant being invited onto the course) there would be no problem providing him with “any supports you need in any future pitches.” The disability referred to in the Complainant’s email on 30 July 2019 was clearly not anxiety or an adjustment disorder, rather it was problems in making presentations. And the offer of support was for future pitches if he got onto Phase 2.

The Respondent submits that the facts as alleged by the Complainant – taking them at their height - falls short of proving disability discrimination.

The Respondent submits that the test for discrimination is not a belief, a suspicion, or an assertion of discrimination.

It is proof that the decision to refuse him entry to Phase 2 was made because of his anxiety and adjustment disorder disability. Not only does the Respondent contend that the Complainant has not provided any proof of his disability to the Adjudicator, they submit also that (even if he did) that the Complainant has not proven knowledge on the part of the panel of this disability and even if the Complainant’s application for Phase 2 was not properly considered (on the basis that his supplemental material was not considered by the Panel as they should have) that, in itself,  is not proof that the refusal was due of his disability (given that this was unknown to the programme manager and therefore the panel.) Even if the Complainant proves that his application was prejudged negatively, there is no proof that this alleged prejudgement was due to the Complainant’s alleged disability.

The Respondent submits that the facts as alleged by the Complainant, under complaint (ii,)  falls short of proving facts from which a prima facie finding of discrimination may be found.

Alleged Complaint (iii) Failure to make Reasonable Accommodation

The Respondent submits that the Complainant has not proven that the programme manager was informed, by virtue of the email of 30 July 2019, of the Complainant’s anxiety and adjustment disorder disability.

The Complainant in his email expressly rejected the requirement that reasonable accommodation be made, stating “I’m not looking for any favourable treatment.”

The Respondent submits that during the adjudication the Complainant did not identify the reasonable accommodation that he claims should have been made for him. Other than to say that he should have been admitted to Phase 2. He claims that the programme manager (knowing about his disability) should have asked him did he need any (non-specific) help.

However, from a reading of this email shows that not only did the Complainant not disclose his disability, not only did he expressly state that he did not require any additional accommodation to be made, but even during the Adjudication hearing he did not identify what reasonable accommodation that should have been done for him.

The Respondent submits that the facts as alleged by the Complainant, under complaint (iii,) falls short of proving facts from which a prima facie finding - that no reasonable accommodation was made -  may be found.

Alleged Complaint iv - Religious discrimination against the Complainant by the programme manager.

The Respondent submits that this complaint of discrimination on grounds of religion is misconceived. It is not identified in the complaint form and consequently the WRC has no jurisdiction to investigate this complaint. It evolved in submissions that the Complainant filed in advance on day 3 of the Adjudication. This complaint is fictitious and is denied in its entirety. It has caused immense stress to the programme manager who, due to this baseless claim has flet under a cloud of suspicion.  

This complaint is incapable of succeeding and should be dismissed on grounds that it is vexatious and frivolous.

3.       The Respondent seeks that a finding be made that the Complainant has failed to prove facts from which prima facie finding of discrimination may be made and or that the complaint be dismissed on grounds that it is vexatious and frivolous

At the Adjudication hearing I asked the parties if either had an application to make that the Adjudication process be anonymised based on “special circumstances” (applying section 25(2) of the ESA 2000-2018.) Neither party requested anonymisation.

Overview Finding

I am satisfied that the Complainant has failed to prove facts, on the balance of probabilities, upon which it may be found that he was discriminated against on grounds of disability or religion. I am satisfied that the Complainant has not met the test of proving a prima facie case of discrimination.

I therefore find that the Respondent has not engaged in prohibited conduct.

Findings

While there is one complaint of discrimination under the ESA this has been broken down into four allegations. I intend to deal with each of these in turn.

Allegation (i) – The work-shop 24 July 2019

For a complaint of victimisation or harassment to succeed, it must be proven that harassment or victimisation occurred due to a prohibited ground.   As the Complainant concedes that he is unable to prove that the programme manager knew of his anxiety and adjustment disorder on 24 July 2019, I am satisfied that the Complainant has not proven that the actions of the programme manager on 24 July 2019 occurred, because of the Complainant’s disability.

This complaint is based on a legal or more specifically an evidential misunderstanding on the part of the Complainant as to the level of proof that he is obliged to discharge. Just because the programme manager may have had access to medical information held by Maynooth University with respect to his disability (which has not been proven, but even if that were so) there is no proof that the programme manager accessed this information prior to the workshop on 24 July 2019.

The case law is clear on this point (Melbury Developments Ltd v. Valpeters. 2010 ELR 64] an assertion or a belief of discrimination “cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

I am satisfied that the Complainant has not proven facts which allow me find that the programme manager was aware of the Complainant’s disability on or before 24 July 2019. And taking the Complainant’s evidence at its height I find that the facts as proven do not meet the test of a prima facie test of discrimination. I therefore find that this complaint is not well founded.

Allegation ii – The denial of his entry to Phase 2.

I am satisfied that the Complainant has not proven facts to allow me to find that the reason that he was not admitted to Phase 2 of the course was due to his disability.

I do not accept that the Complainant’s email to the programme manager on 30 July 2019 identified him as having an anxiety or adjustment disorder disability. The purpose and meaning of this email is clear. While the Complainant is now attempting to give a different construction to this email, this construction is not to be found within its ordinary meaning.

The email is the Complainant (a) is an explanation as to why his presentation during the workshop was under par and (b) advising the programme manager that he has a problem with memory (caused by medication) which gives rise to difficulty giving presentations. The programme manager replied that (if that the Complainant is invited onto Phase 2) that supports will be available to him to assist him making pitches or presentations. There is nothing in the Complainant’s email identifying an anxiety or an adjustment disorder and yet the Complainant now seeks to contend that it was this email that informed the programme manager of his anxiety and adjustment disorder disability.

I do not accept that the Complainant has proven that the programme manager had knowledge of his anxiety and adjustment disorder disability. I also do not accept that the Complainant has proven that the panel had knowledge of his anxiety and adjustment disorder disability.

I am satisfied that the Complainant has not proven facts to allow a finding to be made that the reason that the Complainant was not admitted to Phase 2 was due to his anxiety/ adjustment disorder disability.

The fact that the panel did not consider his supplemental material, does prove that his complete application was never properly considered by the panel, and I accept that this was unfair given that – despite its late filing – he was not advised that the supplemental material would not be considered. However, it would be a leap from this to find that the reason that this occurred was because of his disability.

I am satisfied that the Complainant has not proven facts to allow a finding to be made that (a) the panel was aware of his disability between 30 July 2019 and September 2019 or (b) that the panel decided not to offer him a place on Phase 2 because of this disability.

I find that the facts as proven by the Complainant under this subheading of alleged discrimination do not meet the test of a prima facie test of discrimination. I am satisfied that this complaint is not well founded.

Alleged complaint (iii.) Failure to Make Reasonable Accommodation

It is not clear to me what reasonable accommodation the Complainant contends should have been made for him between 30 July and 25 August 2019 (when he filed the supplemental material to his application) and was not made for him. My inquiry to the Complainant about this during his evidence yielded the response - that it was not up to him to tell the Respondent how they should have reasonably accommodated him. However, it is in fact up to the Complainant to identify this - both at the time that he needed it and during the Adjudication process.

The Complainant did not seek, in his email of 30 July 2019, that reasonable accommodation be made. Conversely, he advised him that he not be provided with any favourable treatment. 

If it was that the Complainant needed assistance with his Phase 2 application (as opposed to supports for making pitches/presentations) he was obliged to ask for that and he did not.

If his email did not only mean support in making pitches/ presentations, he could have stated this when he got the programme manager’s reply, but he did not.

At no point between 30 July and 25 August 2019 did the Complainant seek any specific reasonable accommodation be made for him.

I am satisfied therefore that the Complainant has not proven facts from which it may be found either that the programme manager knew of the Complainant’s disability or that the Respondent failed to make reasonable accommodation for the Complainant’s disability.

Alleged Complaint iv - Religious discrimination against the Complainant by the programme manager.

I am satisfied that this complaint in unfounded. The Complainant has misunderstood what religious based discrimination is and what it is not.

Religious discrimination is adverse treatment on the grounds of a person’s religious belief. The facts as alleged by the Complainant, are, inter alia, that the programme manager offered participants in a workshop session, including the Complainant, a lift home.

This conduct is not capable of constituting adverse treatment on ground of the Complainant’s religious belief.

Furthermore, this allegation is not set out in the WRC complaint form and therefore I have no jurisdiction to consider it. But even if it were, I would find that, based on the facts alleged by the Complainant, that the complaint is incapable of succeeding and as such it is misconceived, vexatious and frivolous.

In respect of this complaint, I am satisfied that it is unfounded, and that the Respondent did not engage in prohibited discriminatory conduct.

While one complaint of discrimination has been brought by the Complainant under the ESA, there are four separate alleged complaints.

In respect of alleged complaints (i-iii) I find that the Complainant has failed, on the balance of probabilities, to prove facts from which a finding of discrimination may be made. In respect of alleged complaint (iv) I dismiss the alleged complaint on ground that it is misconceived, vexatious and frivolous.

As no complaint of discrimination within this overall ESA discrimination complaint has been proven on a prima facie basis, I find that this complaint is not well founded.

The Respondent did not engage in prohibited conduct.

Discrimination – religious – disability