Offaly Personal Assistant Services Ltd (Represented by J. D. Scanlon & Company Solicitors) v Colm Mc Namee

JurisdictionIreland
CourtLabour Court (Ireland)
Docket NumberFULL RECOMMENDATION DETERMINATION NO.EDA1841 ADJ-00004761 CA-00006452-001
Date31 August 2018

Labour Court

FULL RECOMMENDATION

ADE/17/68

DETERMINATION NO.EDA1841

ADJ-00004761 CA-00006452-001

PARTIES:
Offaly Personal Assistant Services Limited (Represented by J. D. Scanlon & Co Solicitors)
and
Colm Mc Namee
DIVISION:

Chairman: Ms Jenkinson

Employer Member: Ms Doyle

Worker Member: Ms Tanham

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

SUBJECT:
1

1. Appeal of Adjudication Officer's Decision No: ADJ-00004761.

BACKGROUND:
2

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 10 May 2018 and 23 August 2018. The following is the Determination of the Court:

DETERMINATION:
3

This is an appeal by Offaly Personal Services Limited against the Decision of an Adjudication Officer ADJ-00004761 in a claim made by Mr Colm McNamee of discrimination on the grounds of disability. He claimed that he suffered discrimination on the ground of disability in relation to access of employment within the meaning of section 6(2)(g) of the Employment Equality Acts 1998–2015 (the Acts).

4

For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Colm McNamee will be referred to as “the Complainant” and Offaly Personal Services Limited will be referred to as “the Respondent”.

5

The Adjudication Officer found in favour of the Complainant's claim and awarded the sum of €8,000 in compensation for the effects of the discrimination. The Adjudication Officer made further orders.

6

The Complainant referred his case to the Workplace Relations Commission on 14 th August 2016. A hearing was held on 8 th March 2017. The Adjudication Officer issued his decision on 12 th June 2017. On 20 th July 2017 the Respondent appealed the Adjudication Officer's Decision. The appeal came before the Court on 10 th May 2018 and 23 rd August 2018.

Background
7

The Respondent is a not-for-profit organisation which provides a personal assistance service to persons with physical and/or sensory disability throughout the counties of Laois and Offaly. It is funded by the HSE. It embraces independent living, and clients are supported to make their own choices and to enjoy life to the fullest. It provides advice and acts as a consultancy organisation, working always towards enabling people with disabilities to be equal to everyone else in society. The service works in conjunction with many centres for independent living throughout the State.

Summary of the Complainant's Case/His Evidence to the Court
8

On 4th March 2016 the Complainant applied for an advertised position as a Community Employment Supervisor with the Respondent. In his curriculum vitae (CV)he disclosed that he is Dyslexic. By letter 11th March 2016 the Respondent informed him that he had been unsuccessful in his application for the position, and he had not been shortlisted for interview “due to the large number of applicants with sector specific knowledge and experience”.

9

The Complainant stated that in addition to being Dyslexic, he is also Autistic (he was diagnosed with Asperger's Syndrome in 2013) and as such has a social deficiency.

10

The Complainant, who was unrepresented, submitted that the Respondent's application process for the CE Supervisor position in March 2016 was weighted against persons with disabilities.

11

The Complainant stated that it came as a shock to him not to be shortlisted as he considered himself to be a near perfect match for the role due to his extensive involvement with Community Employment which began in 1996, when at the age of 22 he became the youngest Supervisor in the country. Furthermore, he has been involved in continuing professional development. This was outlined in his cover letter and CV.

12

The Complainant queried the reasons why he was unsuccessful with the Respondent on 18th March 2016. On 22nd March 2016 Mr Enda Egan, the Respondent's CEO informed him that the task of deciding on the shortlist had been split between himself and the Financial Controller, who was only in the position a short period. Mr Egan told him that a mistake had been made in the marking of his application, resulting in a substantial number of marks not being allocated to his final score. This resulted in his non-selection for interview. The Respondent stated, “that he had not seen the C.V. and that the mistake had been solely that of the Financial Controller”. Mr Egan apologised for the mistake and offered the Complainant a meeting with both himself and the Financial Controller to discuss the situation. However, Mr Egan informed the Complainant that the Community Employment Supervisor's position had been offered to the successful candidate on the same day that the interviews had taken place (16th March 2016) and that that person had accepted the offer. The Complainant declined the offer of a meeting, but thanked Mr Egan for it and complimented him on his service recovery approach.

13

The Complainant said that following his telephone conversation with Mr Egan, a colleague informed him of a connection between the Chairperson of his then current employer (Ms W) who was aware of his disability and with whom he had an acrimonious relationship, and the Respondent's Chairperson (Ms G), he became suspicious and decided to check the veracity of the reasons he had been given for his non-selection.

14

The Complainant submitted that the Respondent's lack of transparency and consistency in the selection process prompted him to request information under the Data Protection Acts 1988 and 2003 and subsequently to make a complaint to the Workplace Relations Commission for adjudication on what he now viewed as an infringement of his right to access employment.

15

The Complainant stated that the Respondent failed to award him correct marks for his level 8 honours degree when it scored him 15 points rather than the 20 he should have received; he only got half the marks for his knowledge of ILPs (10 rather than 20); he was given no marks for his European Computer Driving Licence (ECDL) (8 points) and while employment placement is an integral function of a CE Supervisor, he was allocated 5 points rather than the 20 he should have got for his 13 years of experience in the area. Finally, the Complainant highlighted his involvement with community development in both his cover letter and in his personal statement at the end of his CV, however he was awarded no points under this heading.

16

The Complainant cited all 40 applicants as comparators, including two candidates who were successfully ranked and were subsequently offered the position.

17

In support of his contention, that the Respondent, whether wittingly or not, had discriminated against him, the Complainant cited De Buitleir v Revenue Commissioners, DEC-E2011-107 , where an Equality Officer held:-

“Consequently, the Equality Tribunal will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result”

18

In the case of A Technology Company v A Worker EDA0714 , the Labour Court stated:-

“[A] person with a disability may suffer discrimination not because they are disabled, per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached...

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