The complainant, who suffers from ADD, asserted he was disadvantaged by stage 1 of the competition for Clerical Officer consisting of a 90-minute questionnaire and three aptitude tests.
His allegations were upheld at first instance and an award of €5000 made for a failure to provide him with reasonable accommodation. An order to amend the information booklet was also made.
On appeal, the Labour Court found that the complainant had failed to establish “a prima facie case of discrimination in the circumstances that arose in 2014. He has not established to the Court’s satisfaction that he was in any way disadvantaged by the Respondent’s failure to accede to his specific requests for additional time and breaks at Stage 1. The Court arrives at this conclusion having carefully considered the nature of the on-line Questionnaire and aptitude tests that [comprised] Stage 1 and the timeframe allowed for the candidates to complete the relevant tasks.” In other words, the complainant had not established that extra time was necessary or would have made a difference to results.
Interestingly, the Court then goes to suggest that even if he had established a prima facie case the respondent would likely have rebutted it based on the evidence presented.
The appeal failed and the Adjudicator’s decision was set aside in full other than the element of her decision that directed the respondent to make certain amendments to its written guidelines for candidates. The Court stated “The Court fully endorses – and for the avoidance of doubt – repeats the direction given by the Adjudication Officer in this regard and so directs the Respondent”. Traditionally, directions (orders) are issued where the complainant’s case is upheld as was the situation in this case with the Adjudicator’s decision in accordance with sections 79(6)(a) and 82(1)(e). However, the Labour Court did not uphold the complainant’s claims in this case but a prudent employer should address it, if only to avoid similar issues in the future.
Why is this case of interest?
- This case is a reminder that for an entitlement to reasonable accommodation, the need for it in the first place must be established.
- Even where a prima facia case is established an employer may still be in a position to rebut the case.
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