Case Number: DEC-E2012-039- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-039- Full Case Report
• Date: 01 April 2012
• Court: Equality Tribunal

EQUALITY OFFICER'S DECISION NO: DEC-E/2012/039

PARTIES

A JOB APPLICANT
(REPRESENTED BY THE EQUALITY AUTHORITY)

AND

A COMMUNITY EMPLOYMENT GROUP

FILE NO: EE/2009/744 DATE OF ISSUE: 3 April, 2012

Keywords: Disability - Access to Employment - Reasonable Accommodation - Victimisation

1. Dispute

This dispute involves a claim by Mr. W, that he was discriminated against by A Community Employment Group, on grounds of his disability, in terms of section 6 (2)(g) and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 in relation to access to employment and that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts. The complainant also claims that he was victimised contrary to section 74(2) of the Acts

2. Background

2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 6 October, 2009.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of February, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 16th March, 2012.

3. Summary of complainant's case

3.1 The complainant, Mr. W submits that he suffers from chronic fatigue and back pain and has qualified for disability allowance since 1997. Mr. W submits that he is registered with FAS CE schemes back to work programme. The complainant, Mr. W submits that in March 2009, he was notified by FAS of a vacancy for the post of Reception/Information Support Worker with the respondent. Mr. W submitted his CV and covering letter to the respondent. Mr. W submits that he made the respondent fully aware of his condition in his application. Mr. W submits that he received no response to his application and was not called for interview and further submits that this was due to his disability.

3.2 Mr. W submits that he contacted the respondent by phone on 6th April, 2009 to ask when interviews would be held. He submits that the person who took his call told him to contact FAS then hung up on him. Mr. W submits that he contacted the respondent by email after this but did not receive any satisfactory reason as to why he was not called for interview.

3.3 Mr. W submits that the respondent's failure to acknowledge his job application or, to call him for interview is an act of victimisation, as a result of his having made a previous complaint about the respondent to the Tribunal, which he later withdrew.

3.4 The complainant further submits that the respondent is unwilling to provide him with reasonable accommodation in its workplace in terms of section 16 of the Acts.

4. Summary of respondent's case

4.1 The respondent denies that it discriminated against the complainant, whether on grounds of his disability or, at all. The respondent accepts that the complainant is a disabled person for the purpose of Acts.

4.2 The respondent submits that the complainant was not called for interview for the job in question as his application was received after the closing date of 20th of March 2009. The respondent further submits that 6 other applications were also late (details supplied). The respondent submits that 14 eligible applications were received and that these 14 were interviewed (details supplied). The respondent submits that the late applications were not considered.

5. Findings and Conclusions of the Equality Officer

5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to access to employment and whether or not, the respondent failed to provide the complainant with reasonable accommodation within the meaning of section 16 of the Acts. Furthermore, I must also consider whether the complainant was victimised contrary to section 74(2) of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of both parties at the Hearing.

5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".

5.3...