Complainant

Respondent

Parties

Jennifer  Keane

Edwards Vacuum Technology Ireland Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Joe Bolger ESA Consultants

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-00060593-001

19/12/2023

The Complainant stated that she was discriminated against on the grounds of disability on 17 August 2023 when she was informed that she would not be afforded the opportunity to interview for an internal role with the Respondent.

The Complainant stated that was discriminated against on the grounds of disability, namely autism and ADHD, when she was refused an interview for the role of EUV Technical Lead by Kenny White (site lead), and Derek Flynn (EUV Team Lead) on 17 August 2023. She stated that she expressed an interest in this role separately to both Mr White and Mr Flynn, and the decision made by Mr White was that she would not be invited to interview “because of her recent issues”, and the company’s belief that “it [was] not the right time” for her to take on a “stressful” role. She attributed the decision not to shortlist her to her having taken medical leave prior to starting a regular working week because of a significant delay by the Respondent in providing accommodations to her as a neurodivergent person. Specifically, she made a request in early June to be given a regular working week instead of working a compressed working week of 12-hr shifts. She sought this accommodation because after working the same pattern for 8 months, she suffered with symptoms of fatigue and depression, and was exasperated when, four weeks after she submitted a medical note from her GP instructing that due to her diagnoses shift work was unsuitable for her, she still had not been advised of when she would start a regular working week. She stated that she felt she had to firmly advocate for herself and believed that she was badgering management for a solution and to be taken seriously.

She stated that she ultimately began a regular working week on 7 August 2023 and was advised by the Respondent that she had to undergo a mandatory mental health assessment by an occupational health professional. The doctor understood that it was the shift pattern – both the change from days to nights and 12 hours in length per shift – that caused her symptoms and that it was it was clear that shift work was incompatible with my neurodivergent diagnoses. She stated that recommendations for further accommodations were made, and she was declared fit for work.

She stated that nobody else in the EUV team had expressed any interest in the EUV Technical Lead role. She also asserted that she was the most knowledgeable of the area with over 7 months experience, and alleged that she had been endorsed by the exiting EUV Technical Lead. She stated that she was told that the role would be far too stressful for her, and that it was implied that she would not cope, despite her experience of difficult customers before. It was also expressed that her “recent issues” were a concern and a deciding factor in refusing her an interview. Although she stated that these issues were not defined, it was clear to her that it was her mental health that led to her rejection, despite the report from occupational health declaring her fit for work, and despite her explaining multiple times that she suffered with depression as a symptom and that the only issue for her was shift work which is not an issue in the EUV technical lead role.

She stated that in response to this, she was told that the Respondent wanted to see her “attendance at work improve” – implying that her need to use sick leave while on shift work was a reason for seeing her less favourably as an employee – and that the Respondent wanted stability for her and that this was not the right time for her to take on a role with more responsibility

She stated that she subsequently resigned from her position with the Respondent and alleged in her resignation letter that she had been subjected to discrimination as well as transphobia. Further to receipt of this letter, the Respondent requested that she make an immediate decision on whether to in engage in either a formal or a informal investigation. Although she stated that she needed more than the hour and a half given to her to decide, this extension of time was not afforded to her and she was escorted off the premises with pay and instructed my time with the company was over.

The Respondent denied that the Complainant was discriminated against on the grounds of her disability. Mr Kenny White stated in evidence that 4 candidates applied for the role of EUV Technical Lead, further to which two were shortlisted for interview. He stated that the selection criteria used in assessing the applications were attendance, experience, and length of service. Both shortlisted candidates had more relevant experience in the roles they were in than the Complainant who had only occupied her most recent role for a very short period of time.  The two shortlisted candidates also had perfect attendance records unlike the Complainant.

 Mr White also denied that he was aware of the Complainant’s disability when making the decision on which candidates to shortlist for interview.  

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, namely autism and ADHD, comes within the definition of a disability outlined above.

Section 6(1) of the Employment Equality Acts provide:

“discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’)”

Section 6(2) provides:

“As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

(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 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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 Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"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.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the disability ground. It is only when she has discharged this burden that the burden shifts to the Respondent to rebut the prima facie case raised.

I note that the Complainant stated in her evidence that the Respondent informed her during the meeting of 17 August 2023 that she would be excluded from the interview process for the role of EUV Technical Lead due to her recent issues and concerns about her attendance. She also acknowledged being told that the Respondent wanted her to achieve more stability. I noted firstly that the Complainant did not challenge the Respondent’s evidence that she had taken 19 days off in the period to 17 August 2023 and accepted that these absences were not all linked to her disability. In addition, I noted that the Complainant did not ask, either at the meeting or afterwards, what the Respondent meant either by her "recent issues" or the reference to "stability."

In addition, I noted that she expressed her disappointment at not being invited to interview in an email to the Operations Manager on 23 August 2023. Inexplicably, she did not either seek to clarify any of the reasons that had been given to her in the meeting of 17 August or allege in this email that the Respondent’s failure to call her to interview was in any way connected to her disability.  Indeed, she accepted in evidence that the purpose of the email was to express her disappointment at not having been given the opportunity to showcase her skills and experience at interview.

I also noted that the Complainant did not challenge the Respondent’s evidence that her comparators, namely the two candidates shortlisted for interview had, unlike her, both worked in the same role since they had joined the Respondent, which explained the stability reference by the Operations Manager, and neither had any attendance issues.

Finally, I also noted that the Operations Manager who made the decision which candidates to shortlist for interview, stated that he was unaware of the Complainant’s disability and there was no evidence presented to suggest that he did.   

Considering all of the foregoing points, I find that the Complainant’s assertion that the failure to interview her for the role was discriminatory on the grounds of her disability was speculative and unsupported by any evidence. I therefore find that she has failed to establish a prims facie case of discrimination.

I find that the Complainant has failed to establish a prima facie case of discrimination for the reasons set out above.