Complainant

Respondent

Parties

Claire  Conlon

 North Leinster Citizens Information Service

Representatives

James Birchall of RSM

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-00038420-001

25/06/2020

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

CA-00038420-002

25/06/2020

The Complainant applied for a position with the Respondent which runs her local Citizen’s Information office in Dundalk. The competition was a regional campaign for information officers in Louth, Meath and Kildare.

The Respondent held the competition interviews in Mullingar in March 2020. The Complainant was called to interview but never received the letter sent to her. The Respondent got in touch with her to confirm her attendance the day before the interviews. The Complainant at first indicated that she would attend but then felt overwhelmed and that she couldn’t attend. The Complainant in particular did not believe Mullingar was an appropriate venue. The Complainant cited her diagnosis with Aspergers syndrome and asked for accommodations to be made for her.

The Respondent offered her a different interview slot on the last day of the interviews but the did not offer to hold further interviews in Dundalk.

The Complainant then raised complaints under the Employment Equality and Equal Status Acts.

The Complainant submitted a complaint form and a number of emails. She did not attend the hearing. I have considered the Complainant’s submissions.

She felt the Respondent’s interactions with her were extremely cold. They failed to set out or consider supports for her so she could interview with them. She is of the view that the Respondent failed to offer her reasonable accommodations so that she could interview in Dundalk which was familiar to her. A change of venue would have put her more at ease and allow her to communicate properly in the interview.

The Respondent submitted detailed written submissions and attended the hearing.

They are an advocacy and information organisation deeply committed to equality and disability rights.

Throughout the recruitment process they were available to contact in order to facilitate any reasonable accommodation. When it became apparent that the Complainant had not received the notice they posted to her they engaged with her extensively and sought to offer her a later interview. It was only in refusing to attend the scheduled interview that the Complainant notified them of her disability. She has failed to provide any proof of this disability or that her disability required an interview to be held in Dundalk rather than Mullingar.

CA-00038420-001

Reasonable Accommodation and Recruitment Processes

Section 16 of the Employment Equality Acts outline employers’ obligations to reasonably accommodate those with disabilities.

Sub Section (3) (a) states: For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

Sub Section (3) (b)goes on to state The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability— to have access to employment.

As such the right to reasonable accommodation does arise in recruitment campaigns.

Engagement between the parties in February – March 2020.

As I am decided this matter in the absence of oral evidence I am relying primarily on the written correspondence between the parties from the time of the recruitment process.

The Complainant did not receive the Respondent’s letter inviting her to interview on the 11th of March in Mullingar. As the Complainant did not confirm attendance at the interview the Respondent sent a follow up email around 1pm on the 10th of March asking whether she would attend. The Complainant noted her surprise and the lack of prior notice but indicated she would attend the interview. The Complainant sent a follow up email that evening asking what areas of knowledge she should prepare and then a further email stating that she did not believe it was practical for her to attend an interview on such short notice. She also felt that Mullingar was too far away. In this email she outlined she had a disability and required supports. She did not elaborate further.

The Respondent called the Complainant the following day when the interview was supposed to take place. It appears from the contemporaneous emails and letter that the Complainant was offered an interview slot on the following day if she would still like to interview. She followed up by email and outlined that she had a diagnosis of Aspergers syndrome and her having not received the letter had totally overwhelmed her. She outlined that she did not feel that an interview in Mullingar was appropriate and that it was unsupportive of her diagnosis. She would need a more predictable environment.

The Complainant did not then attend the interview and was not offered the post.

Burden of Proof

As referred to in the Respondent submission, in Melbury v Developments v Arturs Valpeters EDA 0917 the Labour Court discussed the burden of proof requirements outlined in Section 85A of Employment Equality Act.

‘Section 85A of the Act 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’.

The Complainant has failed to establish facts from which discrimination can be inferred.

Obviously, the entire process was unpleasant for the Complainant. Suddenly finding out that she was due to interview in the morning for a much-anticipated role is the stuff of stress nightmares.

However, the Complainant did not at any time establish that prolonging the competition and holding a separate interview in Dundalk was an accommodation required by her disability. She outlined her view that this was the case, but it was entirely unsupported by any medical or other independent evidence.

If the Complainant did establish the above, I would then move on to consider whether that accommodation was a reasonable accommodation or appropriate measure which this Act would have required the Respondent to facilitate. However, given the case before me that is unnecessary.

The Complainant has failed to shift the burden of proof to the Respondent and as such her complaint fails.

CA-00038420-002

The Complainant has also raised a Complaint under the Equal Status Acts concerning the same set of events.

The Equal Status Act prohibits discrimination in the provision of services to the public.

 The Act defines “service” as means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

It is clear that this recruitment related dispute does not come under the remit of the Equal Status Acts and I do not have jurisdiction to consider it under that act.

CA-00038420-001

The complaint is not well founded.

CA-00038420-002

The complaint is not well founded.