Case Number: DEC-E2012-023- Full Case Report. Equality Tribunal

CourtEquality Tribunal
Date05 March 2012
Docket NumberDEC-E2012-023- Full Case Report
The Equality Tribunal

Employment Equality Acts 2000 to 2011

NO: DEC-E2012-023


An Employee
(Represented by the Equality Authority)


A Public Sector Employer
(Represented by Kent Carty Solicitors)

File No. EE/2009/747 Date of Issue: 5 March 2012

Employment Equality Acts - Discriminatory treatment - Failure to provide appropriate measures -promotion/re-grading - Victimisation - Disability - Prima Facie Case

1. Dispute and delegation

1.1 This dispute concerns a claim by An Employee (hereafter "the complainant") that he was subjected to discriminatory treatment, including a failure to provide appropriate measures and victimisation by a Public Sector Employer (hereafter "the respondent") on the ground of his disability. The complainant claimed that he had been subject to less favourable treatment by an employer that has failed or neglected to implement a proper equality policy. This failure has meant that the complainant who ought to have been promoted in 2007 did not get the promotion. The complainant maintains that this discriminatory treatment has been on-going since 2004. Furthermore, the complainant maintained that after he raised the issue of disabilities at a partnership meeting he was threatened with disciplinary action. This, it was submitted, amounts to victimisation.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 8 October 2009 under the Employment Equality Acts.
On 30 September 2011 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by section 79(1) and as part of my investigation, I proceeded to hearing on 10 January 2012. A hearing scheduled for an earlier date had been postponed as a witness was unavailable. The decision has been anonymised to protect the privacy of the complainant.

2. Case for the complainant

2.1. The complainant has been employed in the public sector since 1992. He began his career in the civil service. In 2001, he requested and was granted a transfer to his current location. The respondent became an independent public body in 2005. The complainant has retained his civil servant status as his secondment arrangements have been extended with the consent of the complainant and his parent Department.

2.2. At the time of the complainant's appointment in 1992 his employers were informed - via the Chief Medical Officer - that the complainant had been involved in a serious car accident and that: "[he] has only very small sign that he ever had anything wrong with him. He has a slight speech impediment but is otherwise quite well in every respect".

2.3. The complainant submitted that he has received horrific treatment from the respondent. He claims that his employers have failed to engage him in any meaningful way and that the respondent is dismissive of the complainant and all disability related issues. The complainant maintained that the respondent had failed to:
monitor and assess his progress as a person with a disability;
protect him from unwarranted threats from a member of management in 2004;
to investigate these threats when reported to management in January 2005;
inform the complainant what courses he required in order to progress in the workplace;
implement a promotions policy for people with disabilities;
train interview boards to properly deal with disability issues;
act on medical advice recommending that the complainant be assessed by a named foundation;
excluded him from the planning of a disability policy; and
inform the complainant of his right to seek promotion within the respondent organisation on a temporary basis;
failed to refer his complaint to the Equality Authority for mediation.

2.4. The complainant sought to be appointed to a vacancy that came about as a result of it being transferred for operational reasons to the location where the complainant works in 2007. The complainant attended the interview and was disappointed that despite informing the interview board that he had been registered with the National Rehabilitation Board that the Interview Board did not appoint him to the post. The complainant queried what extra marks he received for being a person with a disability. The complainant also pointed out that the successful person did not have the right to apply for the position as he was not an established civil servant. Furthermore the complainant took exception that the person who had told him in 2004 not to go for a promotion was on the interview board.

2.5. The complainant was informed on 23 March 2007 that he had reached the qualifying mark for the role sought and that he had been placed on the panel. The complainant was also provided with his marking sheet and a report of the interview board. He scored 74 out of 100. This was 23 points higher than the qualifying mark. The complainant took exception that he scored 17 out of 30 under the heading of "communication". The complainant maintains that he has a slight stoppage in his speech and that at times he finds it hard to express himself. The complainant complains that no proper allowance was made to address this issue and he stated that he believes that but for this low grade he would have been successful in becoming first on the panel.

2.6. The complainant submitted that under the Positive Action Framework the respondent has a duty "to ensure equal opportunity and job development". The complainant submitted that the respondent has a duty to encourage the complainant to apply for promotions and to organise mock interviews and training session for the complainant". The complainant also maintained that he was refused a second promotion on 5 June 2008. The complainant submitted that as a person with a disability he has worked hard instead of simply sitting at home. This effort ought to have been recognised by the respondent and he ought to have been promoted.

2.7. The complainant questioned whether a thorough recruitment strategy was put in place with "Specific goals, a timeframe and evaluation process"? He also queried whether some aspects of the job could have been modified to accommodate the needs of a person with a disability and whether the interview board properly trained about the skills required for the advertised job?

2.8. The complainant also complained that he had to share a Performance Award with a number of other employees. He stated that instead of being a burden on the state he was working hard and ought to have his efforts, as a person with a disability, recognised.

2.9. The complainant submitted that he was denied reasonable accommodation when he was asked to participate at partnership meetings via video link. While he accepts that he was given permission to attend these meetings in person he submitted that this was not relevant as the partnership committees were disbanded.

2.10. The complainant submitted that he was bullied by the respondent into accepting a settlement offer relating to his grievances in May 2008.

2.11. The complainant submitted that he was victimised by the respondent in June 2009.

3. Case for the respondent

3.1. The respondent is an independent stationary body since 2005. It employs approximately 170 staff across a number of sites. 4.8% of its staff has a declared disability. The respondent adheres to the government's moratorium on recruitment. The respondent refuted that it discriminated against the complainant on the ground of his disability. Furthermore, the respondent denied that the complainant had been victimised contrary to these Acts. The respondent wished to acknowledge the valuable contribution the complainant has and continues to make towards the work of the respondent.

3.2. It was pointed out that the complainant never made a formal complaint against the named employee in 2005.

3.3. In 2007 a position was transferred from another location to the complainant's place of work. A confined competition was held in March 2007 and two applications were received. The interview board consisted of two internal staff members and an external interviewer. It was disputed that the second candidate was not entitled, because he was not permanent staff, to apply for the role. The successful candidate had been working with the respondent for over 4 years on various fixed-term contracts.

3.4. Both the complainant and the successful candidate were deemed qualified for the position. However, as there was only one vacancy, it was filled by the person who scored the highest grade. The complainant was placed on a panel for a period of one year in accordance with the agreed rules.

3.5. The respondent is satisfied that the interview process complained about was carried out in a fair manner for both candidates using predetermined objective criteria against which candidates were scored. The criteria and marking system adhere to the respondent standard for the position advertised. Upon receiving the complainant's claim that he had been...

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