Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

Lisa Devoy - Advocate

Respondent Managers

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-00056877-001

27/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056877-002

27/05/2023

The issues in contention concerned the complaints of alleged Discrimination contrary to the Employment Equality Act, 1998, by an employee, on Age and Disability grounds against a Public Service.

The allegations center on the Recruitment and Selection process for a permanent part time position.

The Complainant was already employed by the Service on a fixed Term Community Employment Scheme since January 2014 and remained so at the date of the Hearing.

1:1         CA-00056877-001- the Age Complaint

The Complainant applied for a staff position with the Respondent in early November 2022. She was interviewed on the 9th December 2022. Regrettably she was unsuccessful at Interview being placed at position No 2 on a Panel. The successful candidate was a young male in his early 30s with no formal experience as opposed to the Complainant who had extensive experience over some 8 years. In addition, the Complaint holds formal qualifications in the required area which the Appointee does not.

The Complainant submitted a forma Grievance on the 21st March 2023. The Grievance was referred to the HR Subcommittee of the main Board. The Grievance was not supported by the Board.

The Respondent Employer stated that the interview Process was “Competency” based, along professional standards and that the Complaint had scored very highly. However, it was never satisfactorily explained why the Complainant fell short by a very few scoring points. The only possibility suggested by Ms Devoy, the Advocate, was a possibility of “Unconscious Age Bias” against Complainant. Ms Devoy made extensive reference to Adj-00032117 - McCoy v An Garda Siochana where the questions of Interview bias is discussed. The Cases of Reynolds EDA048 and O’Mahony v The Revenue Commissioners DEC-E2022-018 were also referenced in support of the Age Discrimination arguments.

The Complainant felt that she had clearly raised the necessary “Inference of Discrimination” ( ref to Mitchell v Southern Health Board [2001] 12EeLR 201)  sufficient to shift the Burden of Proof to the Respondents.

1:2         CA-00056877-002- the Discrimination Complaint

On the 22nd  December 2022 the Complainant was informed that she was placed at position No 2 on the Panel. She was congratulated and her permission was sought to check references. She was also informed that a Pre-Employment Medical would be required.

The question of a Pre-Employment Medical had never been raised with the Complainant prior to her application. This was to have been carried out by Medmark who required a detailed personal online medical questionnaire to be completed in advance of attending.

The Complainant raised issues with this requirement specifically as it would, in her view conflict seriously with a personal Non-Disclosure Agreement she had made under the Residential Institutions Redress Act of 2002. (abbreviated to RIR Board) In effect she maintained that her Medical records were “Sealed” and could not be disclosed even in a Pre-Employment context. Extensive correspondence and contact followed with Ms W, the Regional Manager of the Respondent. The Complainant argued strongly that she had been effectively in the Respondents Employment & Control for some 8 years without any Medical and could not see the rational at this stage.

 As the situation of the pre-employment could not be resolved satisfactorily the Complainant withdrew from the Recruitment Process on or about the 27th January 2023.

Ms Devoy, for the Complainant, argued strongly that this inflexible Employer insistence of a Pre Employment Medical, particularly in the light of the background RIR Board circumstances, was clearly Discrimination on the Disability grounds. By requiring a Pre-Employment Medical, in these circumstances, the Respondent was creating a situation where the Complainant was seriously disadvantaged in comparisons with other applicants.

The case of Ms X v An Electronic Company DEC-E2006-042 was cited in support.

The Complainant Representative also argued that the refusal to allow a Medical that was effectively based on medical information post the Institutional Redress Sealed Records episode was a Reasonable Accommodation that the Respondent Employer could have easily facilitated -especially as the Complainant had been working successfully, without Medical issues, for the Employer, for some 8 years at this stage.

In final summary the Complainant’s Advocate, Ms Devoy, argued most cogently, that the Complainant was the victim of Age and Disability Discrimination. The Respondent arguments lacked sound objective Justification or even room for a reasonable compromise.

In a closing summary Oral testimony, the Complainant argued that she had overcome many challenges in her life and had been very happy working for the Employer for a considerable period. The Recruitment/Age and Discrimination issues had hit her very hard personally in view of issues in her previous experiences.

The Respondent submitted a comprehensive Written Submission supported by extensive Oral Testimony from Managers, Ms C was the principal Spokesperson supported by Manager, Ms W

2:1         CA-00056877-001- the Age Complaint

The Respondent ran a Recruitment Campaign in December 2022 for three positions in the North Dublin region. Various options were available, but the Complainant choose only one – the post based in Fingal. She was shortlisted and invited for interview on the 19th December 2022. Full details of a Competency based interview were provided. The Interviewers were Ms M and Ms C.

However, on the 21st December 2022 the Complainant, by e mail advised Ms M, Regional Manager, that she wished to withdraw from the Process. Ms W contacted the Complainant and advised her that the withdrawal, (based on a Complainant belief that she had performed poorly at Interview) was completely premature. Ms X stated that she, at length, tried to reassure the Complainant and get her to rescind her Withdrawal. This the Complainant did.

The Candidates were asked in early January to agree to Reference checking and told that a Pre-Employment Medical would be required. On the 27th of January 2023 the Complainant withdrew from the Competition for a second time. Discussions with Ms W followed. A meeting took place in early February 2023 in a Swords Coffee Shop. Ms W stated that she took the Complainant through all her interview questions and explained the scoring. The Complainant had come second by a tiny margin. Ms W again offered to facilitate the Complainant re-entering the Process. Despite verbally confirming to Ms W that she would seek re-entry she sent an email on the 14th February 2023 confirming her withdrawal.

At this stage the Respondent felt that had no options and offered posts to the No 1 on the Panel and to No3 who moved up into the No2 Slot vacated by the Complainant. The Panel remained active and further positions were filled during the year.

In her Oral testimony Ms W stated that she had gone to quite lengthy efforts to re assure the Complainant generally, to provide her with extensive interview feedback and try to “keep the door open” for her as long as possible. Ms W was a very competent Managerial witness who was sensitive to the history of the Complainant.

In their Legal arguments the Respondents cited the oft quoted Burden of Proof arguments beginning with Section 85A of the Act and citing Melbury v Velpetters (EDA0917), Cork City v McCarthy [EDA 0821] and especially Mitchell v Southern Health Board [DEE 011.] 

The Respondent argued that the Complaint of Age Discrimination lacked event the basic facts required to substantiate a Section 6 EEA,1998 case. She had not been unsuccessful at Interview, she had been placed Second. The question of Age was never a factor, the results were those from a Competency based interview and the requested details had been provided to the Complainant. There was an Age gap between the Person at No1 and the Complainant, but this was incidental to a Performance Based Interviewed process.  In answer to questions from the Adjudicator, Ms C confirmed that they been trained at the Institute of Public Administration on Competency Interviewing.

In summary the Respondent argued that the Complainant was making what were essentially assumptions that had no factual basis.

2:2         CA-00056877-002- the Discrimination Complaint

The Respondent pointed to Section 2 of the EE Act,1998 for the definition of a Disability.

The Complainant had never in her period of Employment under the Community Employment Scheme or other Temporary positions raised an issue of a Disability. She performs her work extremely well and there were and are no issues. (For clarification in terms of the Adjudication the Complainant works on a Community Employment Scheme for the Respondent and not in a Permanent Staff position, the subject of this complaint.)

Put directly the refusal to compete the Medmark questionnaire could never be seen as a Disability under the Act. The Respondent had received Corporate Governance advice in late 2018 and had immediately instituted pre–Employment Medicals for all new appointments. This was a new staff appointment and the rule had to apply. Ms W, in an offer to be as accommodating as possible, suggested that the Complainant could speak face to face with Medmark and this would, very likely, get over the issue. The Medmark interview process was absolutely confidential. The Employer would simply get a Report saying Employee Fit or Not Fit and all medical issues would remain confidential between Medmark and the Complainant.

In final comment the Respondent stated that at no time was the Complainant denied access to employment. Ms W made two efforts to get the Complainant to rescind her Withdrawal notices. The lack of employment from this competition was due to the Complainant’s own actions.

The Respondent pointed out that because the Complainant is on a Community Employment (CE) Scheme that will allow her work until age 66 she was only interested d in a Full Time Role under the Disputed competition. At Position No 2 she would have been offered a variety of Roles but unless there were permanent, she would never have accepted them as to do so would jeopardise the CE position.

2:3        Summary

In final summary, the Respondent Managers were very professional and were sympathetic to the personal journey the Complainant had undertaken but nonetheless there was absolutely no prima facie case for either Age or Disability Discrimination.

3:1       Adjudication Comments.

This was a most challenging Adjudication. It merits a broader discussion than might be normal in a standard Employment Equality Act case.

The Complainant was an almost unique individual who had experienced a most challenging life history. Great challenges had been overcome. This was recognised by all Parties to the case. Her oral Testimony was powerful. Indeed, Oral testimony was central to this case. Her lay Advocate was most impressive.

The outcome of the Recruitment competition at the centre of the case was very difficult for the Complainant. From her Oral Testimony, the Adjudicator felt, that the Recruitment process was in effect almost a  “resurrection” of life issues that had been most traumatic for her. In her complaints to the WRC, she saw herself as almost acting on behalf of the entire community of “survivors” from a past era.

However, the key Respondent question and one that had to be addressed by the Adjudication was whether or not the taking of an Employment Equality Complaints of Discrimination on Age and Disability Grounds under the Employment Equality Act,1998 was appropriate or would in any way advance these “historic” goals.

The evidence presented reflected a very professional well-run Employer and a most dedicated employee.

In strict Legal terms and extensive precedents, the WRC Adjudication function is not to re-run Interview competition once they can be seen to be reasonable and non-irrational in procedures and practices. A Competency Model of Interview was used in this case. It has to be accepted that all Procedures will stive for perfection but will almost inevitably end up with an acceptable standard with some flaws.

The main Adjudication area of concern was the fact that the Two Interviewers, while both well trained and experienced, did not have the benefit of any External - Out of Organisation presence on the Interview Board. In a case of this nature and reflecting on the nature of the Organisation a lack of an Outside Person was running a very high risk of the interview/Selection process being challenged.

The lack of an External Independent chairperson for example makes rebutting the Discrimination claim very difficult. The final Selection Scores were so close that an external input might have added considerably to the Process or certainly added to post interview clarification.

It has to be recognised that the Respondent went to very considerable lengths to explain the Process to the Complainant and to give as much post interview feedback as possible.

Ms W, the Manager, managed to persuade the Complainant to rescind her Withdrawals on two Occasions.  This was not the Behaviour of a Manager or an Organisation actively pursuing an Age or Disability discriminatory Agenda.

In relation to the issue of Discrimination on Disability Grounds the key issue was the Medmark questionnaire and the issue of why an established Employee had to undergo a medical at all.

The Respondent Managers clearly stated that the Board of the Organisation had been advised/recommended to that a pre–Employment Medical was a critical Risk Mitigation factor for any Employer and should be implemented as soon as possible.

The Complainant relied strongly on her non-Disclosure settlement with the Redress Board. There appeared to have been some misunderstanding here – an organisation such as Medmark is absolutely confidential and a prospective Employer is given very direct unelaborated answers- Fit, Not Fit or sometimes “Fit with Reservation” thought this latter finding is generally avoided as it is prone to leading to quite a debate as to what exactly it means. In this case the Oral Testimony from the Managers was clear. They knew the Complainant well for a number of years and were happy that she appeared to be fit. However, for legal reasons the formal medical examination was necessary. The Medmark Questionnaire could easily have been replaced by a direct face to face with a Medmark Occupational Physician as was suggested.

The Complainant in her oral testimony could not, it appeared, accept this and had a serious reservation about Medmark knowing anything of her early life history. She was quite emotional on this point. It was a major factor in her withdrawal from the Competition.

3:2          Adjudication Conclusions

In this case the evidence both Written and Oral testimony was considered carefully.

The Discrimination and Disability Legal precedents such as set out in Employment Equality Law by Bolger, Bruton and Kimber, Round Hall, 2012 are of assistance. However, they have to be placed against the unique background context of this case.

Taking the Disability Discrimination argument, the Medmark issue does not from a pure Adjudication point, satisfy the Prima Facie tests for a Discrimination case. Requiring a pre-employment medical is not discriminatory especially when it is a standard employer practice for all new staff appointments.

Of note, as regards this case the learned Authors, above, cite a number of cases where the questions of Candidate formal qualification arose. In this case there was an alleged disparity in qualifications in favour of the Complainant. While it is not a definitive test it does add to the Complainant’s case. However, the Labour Court has noted on a number of occasions that procedural weaknesses, in an otherwise good Respondent case, can be critical in establishing the required preliminary inference of Discrimination.

3:2:1      CA - 00056877-001 – Age Discrimination.

Largely due to procedural failing and the lack of an Independent member of the Selection Board the Discrimination complaint is not rebutted to a satisfactory degree by the Respondents.

The Age Complaint succeeds.

3:2:2        CA-00056877-002- the Discrimination Complaint

The required level of proof to establish a prima facie case was not demonstrated by the Complainant. A pre-employment medical which is a standard practice, and which was offered to the Complainant in a manner calculated to reassure her, could not be seen as discriminatory.

The Disability Complaint fails.

Employment Equality, Age and Disability Discrimination.