Complainant

Respondent

Anonymised Parties

A Job Applicant

A Garden Centre

Representatives

  Represented by his mother.

Aoife Walsh -  Tom Smyth & Associates

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-00063808-001

29/05/2024

The Complainant is a 27-year-old autistic man who applied for a part-time position at the Respondent’s Garden centre in May 2024 through an agency that assists persons with disabilities find a job (“the Agency”). He alleges that he was discriminated against on the disability ground contrary to Sections 6(1), 8(1), and 16(3) of the Employment Equality Acts 1998–2015.

The Complainant maintains that he was misled into working an unpaid “trial day”, that no reasonable accommodation was provided for his autism, and that the way he was treated in the recruitment process was discriminatory.

The Respondent denies any discrimination, asserting that the process was a standard recruitment exercise, that the trial was offered as an opportunity rather than exploitation, and that any misunderstanding resulted from miscommunication between the Respondent, its HR consultant, and  the Agency.

Summary of the Opening Statement (as provided by the mother of the Complainant)

At the commencement of the hearing on 30 July 2025, the Complainant, through his mother, outlined the basis of his complaint under the Employment Equality Acts 1998–2015. He alleged that he had been subjected to discrimination on the ground of disability and that the Respondent had failed to provide reasonable accommodation during a recruitment process for a garden-centre assistant position.

The Complainant submitted that he had applied for the position through the Agency.  His application was managed by an external HR consultant acting for the Respondent, and he was subsequently shortlisted for interview. Following that interview, he was asked to return for what was described as a “trial day” at the Respondent’s premises.

The Complainant stated that on that day he was assigned routine physical work such as watering plants and lifting bags of peat in very hot weather. No other applicant, he said, had been required to perform such tasks as part of the interview process. He believed that he had already been offered the position and that this trial was part of his first day at work. Throughout the day, he received little or no instruction or engagement from management. He said he was left feeling ignored and uncertain as to whether he was being properly assessed or simply being used as additional labour.

The Complainant maintained that he had a solid record of employment and was fully capable of carrying out the duties advertised, provided that clear communication and basic support were available. What occurred instead, it was stated, was a process in which he was isolated and treated differently from other candidates. This, he believed, amounted to less favourable treatment within the meaning of section 6 of the Employment Equality Acts.

He further contended that the Respondent was aware, or ought reasonably to have been aware, of his disability through his referral from the Agency. Even if the precise details of his condition were not discussed, the Respondent, he argued, had a duty to make reasonable inquiries and to provide appropriate measures to accommodate his needs. The failure to take such steps, he said, constituted a breach of the obligations set out in section 16(3) of the Acts.

Evidence of the Complainant:

The Complainant gave evidence that he was a twenty-seven-year-old autistic man who had previously worked successfully in both retail and care roles. He explained that his application for part-time work at the Respondent’s Garden centre had been made through the Agency. His adviser, Mr. A had referred him for the position, which he believed would provide an opportunity to contribute productively in a small, local business setting.

He told the Tribunal that he attended for interview on 10 May 2024, meeting two men, later identified as Mr B and Mr C. During the conversation, they discussed details that led him to believe he had been hired. According to his recollection, “They said it would be twelve euro an hour. Then one of them asked me when I could start. I said tomorrow, and they said, ‘great, we’ll see you then.’” From that exchange, he was certain that he had been offered a job rather than a trial or assessment.

The next morning, Saturday 11 May, he arrived at the garden centre punctually at 9 a.m., expecting to begin his first day of paid work. No one met him or appeared to be waiting for him. “I waited outside the office for half an hour,” he said. “I didn’t know what to do. Eventually a lady came out – Ms D – and she said she was told to keep an eye on me.” He explained that he was then assigned to menial tasks such as watering plants and carrying bags of compost, with no instruction or supervision for most of the day. The owner, whom he later learned was Mr. H, walked by him twice without greeting him. “He walked by me twice and didn’t say hello. Everyone else looked at me funny, like they didn’t know who I was,” he told the hearing.

The Complainant said he worked until six o’clock that evening, believing he had completed his first full day as an employee. Nobody told him whether he should return the following day or what his ongoing schedule would be. The following week he received an email stating that he had been “not the right fit.”“I couldn’t understand it,” he said. “Nobody told me it was a test.” When he asked about wages for the day he had worked, he was told a €100 voucher would be sent “as a thank-you.” He recalled feeling deeply devalued. “I felt humiliated. I worked a full day. I was treated like I wasn’t worth being paid properly.” He explained the experience left him anxious, confused, and reluctant to apply for further work. The event, he said, had seriously damaged his confidence and sense of self-worth.

During cross-examination, the Complainant accepted that he had not received a written job offer, but he maintained that the discussion of pay and start times “sounded like a job, not a trial.” Asked whether he had been told the work was physically demanding, he replied, “Nobody said that. I was ready to work. I’ve done lifting work before.” When questioned about reasonable accommodation, he denied that any special measures were required: “All I needed was someone to explain clearly what to do. That’s all.” He confirmed that he had received the €100 voucher but had never used it. Summing up his feelings about the incident, he told the hearing, “If they didn’t want me, they should have said so politely. Not let me come in and work like that.”

Summary of the Evidence of Ms E, Sister-in-Law of the Complainant:

The witness testified that she had supported the Complainant throughout the recruitment process because of his autism and communication difficulties. After the interview, the Complainant told her he had been asked to attend for a “trial” on the Saturday, which he believed meant he had been offered the job.

The witness said she brought the Complainant to the garden centre that morning and collected him later that afternoon. He appeared tired and confused, saying he had spent the day watering plants and moving compost in hot weather, had received little supervision, and did not know whether to return the next day. When the witness phoned the garden centre to clarify matters, Ms D said she did not know the situation and would ask management. Despite several follow-up calls, no one from management ever confirmed the outcome.

The witness stated that the experience left the Complainant distressed and humiliated, believing he had been misled and ignored. She later contacted Mr A of the Agency, who confirmed that the Respondent had been informed of the Complainant’s autism and his need for clear communication. The witness said it was clear that no effort had been made to accommodate his disability and that the process had been handled with indifference and confusion.

Summary of the Evidence of Mr F, Brother of the Complainant:

The Complainant’s brother explained that he had found the garden-centre job advertisement and helped arrange the interview through the Agency. He referred to an email sent by one of the Respondent’s managers, Mr C, on 10 May 2024, the day before the Complainant worked, stating that he was “not quite the exact match but could come for a two-day trial.” The witness emphasised that this message was sent before the workday and not read by the Agency until the following Monday, proving that the Complainant could not have known he was on a “trial” and that the Respondent had already decided he was unsuitable.

After the Saturday workday the witness telephoned the garden centre and was told by a staff member that they did not know whether the Complainant was expected to return. Subsequent follow-ups revealed that the Respondent had decided not to employ him because “it would be too busy over the summer.” He described how his brother was distressed and humiliated after working a full day unpaid and later required counselling for anxiety and loss of confidence.

In cross-examination he accepted that he had not been present at the interview or trial but insisted that his evidence was based on written records and direct communications. He rejected the suggestion that he was overstating the case, maintaining that the email trail showed pre-judgment, that the complainant alone was asked to work, and that the Respondent had failed to communicate or pay him properly.

Summary of the Evidence of the Complainant’s Father:

The Complainant’s father gave evidence about the period immediately before and after his son’s experience at the garden centre. He said that his son had been “delighted and proud” to believe he had secured a job and had gone to work on 11 May 2024 in good spirits. When he returned home that evening, he was quiet, withdrawn, and confused, saying that no one had spoken to him properly, that the owner had walked past without greeting him, and that he had not been told whether to return the next day.

The witness explained that over the following week his son became increasingly anxious while waiting for news from the employer. When the email arrived stating that he was “not the right fit” and offering only a €100 voucher instead of wages, he was “devastated and humiliated.” The father said the incident destroyed his son’s confidence and trust, describing how he became reclusive, fearful of further rejection, and required counselling for anxiety. He said the experience had “taken away his belief that people would give him a fair chance.”

In cross-examination the witness accepted that he had not been present at the interview or workday and that his evidence related to the aftermath, but he insisted that the emotional impact was real and profound. He rejected the suggestion that the incident was simply a misunderstanding, stating that the Respondent’s treatment of his son—allowing him to believe he had a job, making him work a full day, and then giving him a voucher instead of wages—was “deeply disrespectful and wrong.”

Summary of the evidence of Mr A, the Agency Representative:

The witness explained that he acted as liaison between the Complainant and the Respondent during the recruitment process. He said he personally telephoned the Respondent’s HR consultant, Ms G, before the interview and explicitly stated that the Complainant was autistic and would need clear, structured communication. Ms G, he said, acknowledged this and replied that it would be “no problem.” He confirmed that the Agency had no arrangement for unpaid trials and that any work experience was expected to be paid and clearly defined.

He referred to an email from the Respondent sent on Friday 10 May 2024 at 16:39, which described the complainant as “not quite the exact match” but proposed a “two-day trial.” He did not see that email until the following Monday morning, after the Complainant had already worked on the Saturday, meaning the Complainant could not have known that he was on any form of trial. When he contacted the Respondent to clarify matters, he was told that the Complainant would not be kept on and would be sent a €100 voucher “as a gesture.” He said this was inappropriate, as anyone who had worked a full day should have been paid wages.

The witness described the episode as a communication failure but emphasised that the Respondent was clearly aware that the complainant had a disability and had a duty to provide proper information and support. He added that the situation had a serious emotional impact on the Complainant, who was left confused and demoralised.

In cross-examination the witness was challenged on whether he had a written record of disclosing the disability; he admitted he did not but insisted that the conversation occurred and that Ms G had acknowledged it. It was suggested to him that he might be mistaken and that he had not used the word “autism.” He rejected that, saying, “I told her the Complainant was autistic, and she said that was fine.”

He was pressed on whether he had told the Complainant about the  trial. He replied that this was impossible because he had not read the Friday email until Monday. He accepted that the situation arose from miscommunication but maintained that the Respondent, having been informed of the disability, should have taken greater care to communicate clearly and to ensure the Complainant was treated appropriately. He said the employer’s offer of a voucher instead of wages was “not acceptable practice.”

Closing Statement:

In closing, the Complainant’s mother submitted that the recruitment process conducted by the Respondent amounted to direct discrimination on the disability ground and a failure to provide reasonable accommodation contrary to the Employment Equality Acts 1998–2015. She relied particularly on sections 6(1) (less favourable treatment), 8(1) (access to employment), 16(3) (reasonable accommodation), and 85A (burden of proof).

The Complainant argued that once the Respondent engaged with the agency, it was on constructive notice of the Complainant’s autism and thereby obliged under section 16(3)(a) to make reasonable inquiries as to his needs and to provide appropriate measures to facilitate equal participation. No such inquiries were made. She contended that the Complainant was treated less favourably than others, as he alone was required to perform a physically demanding “trial day” in high heat, unsupervised and without explanation, while no other candidate was asked to do likewise.

In legal argument the complainant’s mother cited Article 5 of the EU Equal Treatment Directive and Article 14 of the European Convention on Human Rights contending that each reinforced the duty to ensure equality of access and to prohibit adverse treatment based on disability or status. She emphasised that discrimination under the Acts need not be intentional, and that the effect of the treatment was sufficient to constitute a breach.

She rejected the Respondent’s claim that the issue arose from mere miscommunication, asserting that any misunderstanding was itself evidence of the Respondent’s failure to meet its statutory duty of accommodation and to manage recruitment fairly.

Concluding, the Complainant’s mother submitted that a prima facie case of discrimination had been established under section 85A, and that the burden now lay on the Respondent to prove that the differential treatment was wholly unrelated to disability. She asked the Adjudicator to make a finding of unlawful discrimination and to direct corrective and compensatory measures, stating that “no other young man with autism should have to endure such treatment in seeking honest work.”

Summary of the Opening Statement:

At the opening of the hearing on 30 July 2025, the Respondent, a family-run garden centre represented by Ms Aoife Walsh, set out its position in response to the complaint brought under the Employment Equality Acts 1998–2015. The Respondent denied that any act of discrimination or failure to provide reasonable accommodation had occurred during the recruitment process. It maintained that the Complainant was treated fairly, respectfully, and in line with normal recruitment practices throughout.

In outlining the background, the Respondent explained that the garden centre had engaged Ms G to assist with advertising the role and conducting preliminary screening of applicants. The position in question had attracted many applications, from which approximately thirteen candidates were shortlisted for interview. The Respondent stated that the process was competitive and merit-based, and that the Complainant’s application had been given full and fair consideration on the same basis as all others.

The Respondent’s representative told the hearing that at no stage prior to or during the recruitment process had the Respondent been informed or made aware of the Complainant’s disability and accordingly argued that it had either actual or constructive notice of any disability that might have required specific inquiry or accommodation.

With respect to the trial day, the Respondent stated that this was not imposed as a condition or an act of differential treatment but rather offered as an additional opportunity for the Complainant to demonstrate his practical skills following what had been described as a limited or nervous interview. The Respondent maintained that such trial periods were a customary and legitimate feature of recruitment within the horticultural and retail sectors, and that they had been used on other occasions for candidates of varying backgrounds. The Respondent also noted that the Complainant had agreed to attend voluntarily and that he had later been paid for his participation, consistent with fair practice.

Ms Walsh emphasised that no remarks, actions, or decisions taken by any employee or agent of the Respondent had anything to do with disability, and that the eventual decision to offer the role to another candidate was made solely based on experience and suitability. The successful applicant, it was said, had over two decades of experience in landscaping and horticulture, which made him objectively the best candidate for the role. The Complainant’s non-selection therefore could not be construed as discrimination.

The Respondent rejected the claim that any reasonable accommodation was required or neglected, asserting that such an obligation could arise only once an employer was on notice of a disability. As there had been no such disclosure, the statutory duty under section 16(3) of the Employment Equality Acts did not arise. It further argued that the Complainant’s feelings of having been ignored or overlooked, while regrettable, could not of themselves amount to evidence of discriminatory treatment within the meaning of the Acts.

Finally, the Respondent expressed concern that the allegations had caused unwarranted reputational damage to a small, long-established local business that had always sought to treat employees and applicants with fairness and respect. It asked the Adjudicator to note that the Respondent  had engaged a professional HR consultant to ensure compliance with proper recruitment standards, and had acted transparently at every stage of the process.

In conclusion, the Respondent invited the Adjudicator to find that the complaint was without foundation, that the recruitment process was conducted lawfully and impartially, and that the Complainant had not been treated less favourably on any prohibited ground. Ms Walsh stated that while the Respondent regretted that the Complainant had felt disappointed by the outcome, disappointment at not securing a position is not equivalent to discrimination, and there was no objective evidence to suggest otherwise.

Summary of the Evidence of Mr B, the Respondent’s Accountant:

The witness said he attended the Complainant’s interview alongside the manager, Mr C, but played no decision-making role. He described himself as merely assisting at the interview and confirmed that no job offer was made. The Complainant was instead invited to come in for a few hours on the Saturday so that management could “see what he could do.” The Witness regarded this as a short trial, a practice he said sometimes occurred in the business and which he himself had experienced when he first joined.

He was not present on the Saturday when the Complainant worked in the garden centre and had no part in assessing his performance or deciding the outcome. He said the successful candidate from the same interview round was the best qualified and was hired directly without a trial.

Under cross-examination, the witness acknowledged that he had no prior knowledge of the Complainant’s disability, carried out no special preparation, and was unaware of any reasonable accommodations being considered. He confirmed that no assessment was made by him of the complainant’s ability to lift or deal with customers. He accepted that trials were not uniformly applied to all candidates and that his own trial had been unpaid, though he maintained it had been a legitimate probationary exercise.

Summary of the evidence of Ms D, Employee with the Respondent:

The witness, a long-serving employee of the respondent garden centre, testified that she was not a manager and had no role in hiring decisions. She said she was told by Mr C that the Complainant would be coming in for a “day’s trial” on the Saturday, which she understood as an informal opportunity to see how he managed in the work environment.

On the day, she introduced the Complainant to colleagues, showed him around, and had him assist with watering plants and helping customers load compost. She described him as pleasant, polite, and cooperative, though she noticed he seemed “a bit unsteady” in the heat. Later that evening she took a phone call from a family member asking whether he should return to work; she replied that she did not know, as she had no authority to decide. She said she later passed on brief feedback to management that the Complainant had been courteous and capable with customers but might have difficulty lifting heavy items.

Under cross-examination, the witness confirmed that she was never asked to assess the Complainant formally, that no structured evaluation or feedback process existed, and that the successful candidate was not required to complete a trial. Her evidence depicted the Complainant’s trial as an unstructured, informal exercise without any proper assessment or communication from management about its outcome.

Summary of the Evidence of the Garden Centre Manager, Mr C:

Mr C said he conducted the complainant’s interview along with Mr B. He described the Complainant as polite and quiet and stated that no mention of disability was made during the interview. The witness invited him to attend for an unpaid “trial” on the following Saturday, which he characterised as a few hours’ practical test to see how he managed in the work environment. He was not present on the day but later heard from staff that the Complainant had been pleasant and helpful, though somewhat unsteady. Management subsequently decided not to offer him the job, preferring another candidate who was already known to the business.

Under cross-examination, Mr C accepted that the Complainant worked a full day without pay. He acknowledged that the successful candidate did not complete any trial and that no policy or consistent practice governed such arrangements. He also admitted that he had no knowledge of the Complainant’s disability at the time and that the business had no disability or accommodation procedures in place.

Summary of the Evidence of Ms G, HR consultant to the Respondent:

The witness   said she assisted the Respondent by handling the administrative side of recruitment for the garden centre. Her duties included screening over a hundred applications, shortlisting candidates, and arranging interviews. She testified that she was contacted by Mr A of the Agency, who proposed the complainant as a candidate. The witness stated that she made it clear to him this was a competitive recruitment process and that the Complainant would be considered alongside others.

She said Mr A never told her that the complainant was autistic or required any special assistance. She had asked if there was anything she needed to be aware of and was told there was not. She therefore assumed there were no disability-related issues. The Complainant’s CV and cover letter were sent to her and passed on to the Respondent; he was later one of three shortlisted candidates invited to interview.

The witness was not present at the interview, but afterwards Mr C informed her that while the Complainant had been friendly, his interview performance was weak. Mr C proposed a short, unpaid trial day to allow him to demonstrate his abilities in a practical setting. The witness said she informed Mr A of this and he appeared pleased. Following the trial, she learned from the Respondent that the complainant had done fine but was “not the right fit,” and that another candidate was preferred. She conveyed this to Mr A and later spoke directly to the Complainant to confirm that he had been unsuccessful and to thank him for his efforts.

The witness said she later received a phone call from the Complainant’s mother, during which she realised there had been a misunderstanding about the nature of the trial and the outcome. The witness maintained that the Complainant had been treated courteously and that any confusion arose from miscommunication rather than mistreatment.

Under cross-examination, the witness accepted that the Complainant was the only candidate required to undertake a trial, though she insisted this was intended to support him rather than to disadvantage him. She confirmed that she had made no formal inquiries about disability or accommodation needs, explaining that she did not want to pressure the Agency to disclose personal information. She also accepted that the process was informal and inconsistent, lacking any structured assessment or follow-up, but denied that there had been any discrimination.

Summary of the evidence of Mr H, Managing Director of the Respondent Company:

The witness said he had operated the business for over twenty-five years and that recruitment for the retail assistant role was managed by an external HR consultant, Ms G. He confirmed he had spoken to Mr A of the agency, who told him he had a suitable candidate, but said no mention was made of any disability or need for accommodation. Had that been disclosed, he said, the business would have made appropriate inquiries.

Thirteen applications were shortlisted, three candidates were interviewed, and the witness had intended to sit on the interview panel but was unable to do so due to a family emergency. The Complainant’s interview, conducted by Mr B and Mr C, was reported to the witness as “pleasant but not particularly strong,” and Mr C suggested to the witness of offering a short unpaid trial to gauge suitability. The witness said this was a common practice in the business, sometimes lasting a day or a week depending on the job.

The witness was present but busy on the day of the Complainant’s trial and denied ignoring him. Informal feedback from staff described the Complainant as polite and willing but somewhat hesitant with customers. Based on this, the Respondent decided to hire another candidate with greater experience. The witness said the Respondent informed the Complainant his details would be kept on file for future work and that he believed the process had been fair.

Under cross-examination, the witness accepted that the Complainant was the only candidate required to complete a trial, that there had been no structured assessment or written feedback, and that he had made no inquiries about the complainant’s disability despite knowing he came through the Agency. He said he relied on Ms G’s assurance that no accommodations were needed and insisted there was no intent to discriminate.

Closing Statement:

In closing, the Respondent argued that the Complainant had been treated fairly and lawfully throughout the recruitment process and that no discrimination on disability grounds had occurred. It was submitted that the process complied fully with the Employment Equality Acts 1998–2015, and that the Complainant’s disappointment or sense of exclusion did not amount to unlawful treatment. The Respondent  was entitled to select the best-qualified candidate on objective grounds, as permitted under section 8(4) of the Acts.

The Respondent stressed that the Complainant had been shortlisted, interviewed, and even given an additional opportunity through a one-day trial — a courtesy not extended to other candidates. The Respondent submitted that this  demonstrated inclusion rather than discrimination. The successful candidate, by contrast, had more relevant experience and qualifications, and the decision to hire him was made on merit alone.

It was further submitted that the Respondent had no knowledge of the Complainant’s autism during recruitment. The Agency officer, Mr A, who had referred the Complainant, never disclosed any disability to the HR consultant, Ms G, despite being asked whether accommodations were needed. As no such disclosure was made, the Respondent argued, no obligation to provide reasonable accommodation had arisen under the Acts.

The Respondent relied on the WRC decision in ADJ-00029639] (2021) to support the principle that while employers must facilitate persons with disabilities, there is an equal duty on the applicant to indicate the need for accommodation. The Respondent also cited section 85A of the Acts, which places the initial burden of proof on the complainant to establish primary facts giving rise to an inference of discrimination. The Respondent cited Mitchell v. Southern Health Board [2001] ELR 201, where the Labour Court held that a Complainant must first prove the factual basis of discrimination before the burden shifts to the respondent, and to Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64  which confirmed that speculation or unsubstantiated assertions cannot satisfy this requirement.

The Respondent submitted that the Complainant had failed to meet this evidential threshold, noting inconsistencies in his account about the trial, disability disclosure, and pay. They concluded that the recruitment process had been objective, transparent, and non-discriminatory, and requested that the complaint be dismissed in its entirety.

Applicable Law:

Section 6(1) of the Employment Equality Acts 1998–2015 (“the Acts”) provides that discrimination occurs where a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the discriminatory grounds, including disability.

Section 8(1) prohibits such discrimination in relation to access to employment, including recruitment and selection procedures.

Under section 85A, once a complainant establishes facts from which discrimination may be inferred, the burden of proof shifts to the respondent to prove the contrary. As stated in Mitchell v. Southern Health Board [2001] ELR 201, a complainant must establish the primary facts that give rise to an inference of discrimination; once this is achieved, the onus passes to the respondent to rebut that inference with cogent evidence. This principle was reaffirmed in Arturs Valpeters v. Melbury Developments Ltd [2010] ELR 64, which held that mere assertions or denials are insufficient to discharge that burden.

Section 16(3) of the Acts further imposes an obligation on employers to provide reasonable accommodation to persons with disabilities by taking appropriate measures to enable them to have access to employment, participate in employment, or advance in employment, unless such measures would impose a disproportionate burden.

Having heard all the evidence, I found the testimony of Mr A of the Agency to be consistent and credible. Mr A gave a clear account that the Respondent’s HR consultant, Ms G, was explicitly informed that the Complainant was autistic and was referred through the Agency precisely on that basis. I found the evidence of Mr A to be the more credible and persuasive and preferred his version of events over that of Ms G, having regard to his professional role and to the fact that disclosing to prospective employers the nature of a job applicant’s disability forms a central aspect of the assistance he provides. I am satisfied, on the balance of probabilities, that the Respondent was on notice of the Complainant’s disability from the outset of the recruitment process.

By contrast, I found the evidence of the Respondent’s witnesses—particularly Ms G, Mr H, and Mr C—to be inconsistent and, at times, self-contradictory. Their accounts diverged significantly as to who was informed of the disability, who was responsible for making necessary inquiries, and what steps—if any—were taken to ensure reasonable accommodation. I do not accept the Respondent’s contention that no knowledge of the disability existed; that claim is contradicted by the sequence of communications and by the credibility of the evidence of Mr A.

The evidence disclosed that the Respondent’s recruitment process was informal, unstructured, and poorly coordinated. There were no written procedures, evaluation forms, or objective criteria applied. The Complainant was invited to attend what was described as a “trial” day, purportedly to demonstrate his suitability. However, no other candidate was subjected to such a requirement. The so-called trial was unpaid, lacked any defined parameters, and was conducted without proper supervision or assessment.

During that day, the Complainant—an autistic candidate—was left largely unattended, given physical tasks in hot conditions, and received minimal direction or feedback. The managing director, Mr H, accepted that he did not interact meaningfully with the Complainant and that no one was assigned to monitor or evaluate his performance. The Complainant was thereafter provided with no formal feedback and was not informed of the outcome until several days later.

I find that this treatment amounted to less favourable treatment within the meaning of section 6(1) of the Acts. The requirement that the Complainant alone undertake an unpaid “trial” constituted a differential and disadvantageous condition of access to employment, not imposed on other candidates. In the context of disability, this disparity was inherently discriminatory.

Moreover, in circumstances where the Respondent was on notice of the Complainant’s autism, it failed to make any inquiry or adjustment to ensure that he could participate on an equal footing in the recruitment process. This failure contravenes the obligation under section 16(3) to take appropriate measures to accommodate a person with a disability.

Based on the foregoing, I am satisfied that the Complainant has established primary facts capable of raising an inference of discrimination. Specifically, the evidence shows that: the Complainant was a person with a disability (autism); the Respondent was, or ought reasonably to have been, aware of that disability; the Complainant was subjected to a different and less favourable recruitment process than other candidates, being the only applicant required to undertake unpaid work under unsuitable conditions; and the Respondent failed to take reasonable steps to accommodate him during that process.

These facts are of sufficient significance to shift the burden of proof to the Respondent under section 85A of the Acts. The Respondent has not provided credible evidence to rebut this inference. Assertions that the trial was intended as a “supportive opportunity” are not supported by any contemporaneous documentation or by an objective explanation for why it was applied only to the Complainant.

Conclusion:

I find that the Complainant was discriminated against on the disability ground in contravention of sections 6(1) and 8(1) of the Employment Equality Acts 1998–2015. The Respondent further failed to comply with its statutory duty under section 16(3) to make reasonable accommodation for the Complainant’s participation in the recruitment process. The Complainant has accordingly established a well-founded complaint of discriminatory treatment in access to employment.

Redress:

Having found that the Respondent discriminated against the Complainant on the disability ground, contrary to sections 6(1)(g) and 8(1)(a) of the Employment Equality Acts 1998–2015 and failed to comply with its obligation to provide reasonable accommodation under section 16(3) of the Acts, I now turn to the question of redress.

Under section 82(1) of the Acts, where a complaint is upheld, the Adjudication Officer may make such orders as are just and equitable in the circumstances, including:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

 (d) an order for equal treatment in whatever respect is relevant to the case;

 (e) an order that a person or persons specified in the order take a course of action which is so specified;

 (f) an order for re-instatement or re-engagement, with or without an order for compensation.

The evidence demonstrates that this experience left the Complainant feeling confused, humiliated, and excluded, and that it had a lasting negative impact on his confidence and sense of self-worth. The Respondent’s management were aware, or ought reasonably to have been aware, that he was referred through the Agency and that he was likely to require additional support and clarity. Their failure to make even minimal inquiries or adjustments represented a serious disregard of their legal obligations and of the dignity of a person with a disability.

The Respondent witnesses’ evidence showed it was not fully aware of the legal ramifications of equality legislation. While I accept that the discrimination was not deliberate or malicious, it was the result of carelessness and a lack of procedural awareness, which is nonetheless prohibited under the Acts. The Respondent’s conduct displayed a lack of understanding of its obligations in relation to disability-inclusive recruitment and reasonable accommodation.

CA-00063808-001: the Complainant was discriminated against on the disability ground in contravention of sections 6(1) and 8(1) of the Employment Equality Acts 1998–2015. The Respondent further failed to comply with its statutory duty under section 16(3) to make reasonable accommodation for the Complainant’s participation in the recruitment process. Having considered the evidence, the gravity of the treatment, and the absence of any financial loss beyond injury to feelings, I find that an award of €5,000 is just and equitable under section 82(1)(c) of the Acts.  

Pursuant to section 82(1)(e) of the Acts, I further order that the Respondent, within six months of the date of this decision, shall:

Review and amend its recruitment and selection policies to ensure compliance with the Employment Equality Acts 1998–2015, specifically in relation to recognising and responding appropriately to applicants with disabilities; making reasonable inquiries and accommodations where disability is disclosed or reasonably inferred; and ensuring that any practical assessment or “trial” forms part of a structured and equitable recruitment process applied consistently to all candidates.

Employment Equality Acts 1998-2015, Disability, Recruitment Process, Reasonable Accommodation.