In a recent case before the Workplace Relations Commission (“WRC”), a disability charity has been ordered to pay €8,000 compensation and to apologise for discriminating against a prospective employee on the ground of disability. This decision highlights the need for employers to be cognisant of equality legislation at the pre-employment stage of recruitment.
Background
The complainant applied for the position of Community Employment Scheme Supervisor at the respondent charity organisation and disclosed in his application that he was both dyslexic and autistic. Two days before the interview he was informed that his application was unsuccessful due to “the large number of applicants with sector specific knowledge and experience”. As the complainant considered that he possessed the necessary experience to progress to the interview stage he made inquiries with the respondent. The respondent informed him that a mistake had been made to the marking of his application resulting in several marks being omitted from his final score.
The respondent claimed that the mistake was due to “human error” and this had resulted in his application not advancing to the interview stage. However, the Adjudication Officer (AO) noted the size of the discrepancy between the number of marks recorded on his scoresheet and the number of marks recorded on his final review sheet. The AO considered that the erasures and revisions inserted on the claimant’s final marking sheet were cause for concern.
The respondent claimed in its defence that when reviewing the applications they did not progress to the paragraph in the complainant’s application form stating his disability. However, following the Labour Court decision in Connacht Gold Co-op Society v A Worker (EDA-822), the Labour Court stated that the employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability. Since the complainant had disclosed his disability in his application, the respondent was deemed to be “on clear notice of the complainant’s disability” and this defence was denied.
The Law
In Ireland, the Employment Equality Acts, 1998 – 2015 (“the EEAs”) prohibit discrimination by employers on 9 grounds as follows:- gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller Community.
There is no definitive list of conditions which constitute a “disability” under the EEAs. However, Section 2 sets out a broad definition which has been given a wide interpretation in case-law to encompass mental disabilities such as dyslexia and autism.
Importantly, Section 8 of the EEAs applies to prospective as well as current employees by prohibiting discrimination at the recruitment stage. Section 16 also obliges employers to provide reasonable accommodation of a disability.
Decision
The WRC took account of the time pressure surrounding the recruitment process in this case and found that the three day process was underpinned by undue haste. Furthermore, the selection process for interviewees was deemed to be bereft of transparency.
The WRC held that the complainant satisfied the burden of proof in establishing a prima facie case of discrimination contrary to section 8 of the EEAs. The respondent was ordered to review its recruitment policy and procedure and to issue a formal letter of apology. An award of €8,000 was also made for the infringement of the complainant’s statutory rights.
This decision highlights the importance of conducting a fair, transparent and non-discriminatory recruitment process from the outset. The WRC can award up to €13,000 compensation to prospective employees who are found to have been subject to discrimination.
