Parties: Noel O’Connell v National Council for Special Education
Representatives: Michael Kinsley BL instructed by Sinead Lucey, Free Legal Advice Centres – M P Guinness BL instructed by Jack O’Connor Eversheds Sutherland LLP
Full Decision
What Happened?
Noel O’Connell applied for a job position advertised by the National Council for Special Education (NCSE) titled ‘Advisor Deaf/Hard of Hearing’ on the 7th of March 2022. Although fluent in Irish Sign Language (ISL), the Complainant’s application was turned down by the Respondent as he did not meet the job requirement of holding an official academic ISL qualification. The Complainant asked for an internal review of the decision made against his application, a review which concluded that the Complainant did in fact meet the essential criteria. However, the Respondent stated that the Complainant could not re-apply due to the application window being closed and would not be offered a remedy.
What Was the Dispute?
The Complainant filed a complaint to the Workplace Relations Commission against the Respondent on grounds of discrimination in accordance with section 77 of the Employment Equality Act 1998.
The Complainant argued:
- His first language was ISL and that he had a PhD in deaf education.
- He applied to the position on the 7th of March, a job he was qualified for being fluent in ISL and having a PhD in deaf education.
- On the 19th of April, the Complainant was informed that his application would not be shortlisted. On the 6th of May, following an inquiry made by the Complainant, the Respondent said the decision was made on the basis that the Complainant did not hold an official ISL qualification.
- An internal complaint was made by the Complainant claiming the Candidate Information Booklet was discriminatory against deaf people.
- This complaint was referred to Ms. Caroline McKeon by the Respondent, who on the 20th, decided that the Complainant met the necessary criteria for the job.
- On the 22nd of August, the Respondent informed the Complainant that despite this complaint being upheld, it was now too late to re-apply to the position as the recruitment window had closed.
- It was significantly more challenging for a deaf person to meet the job criteria set out by the Respondent.
- He was well qualified for the position which he had applied for and suffered significant losses because of the Respondent’s decision.
The Respondent said:
- The NCSE was set up to enhance the delivery of education services to those with special educational needs (SEN).
- They made an advertisement for the position of ‘Advisor Deaf/Hard of Hearing’ with a closing date for applications on the 7th of March 2022.
- The Complainant was informed on the 19th of April that his application had not been accepted.
- The Complainant looked to complain about the decision via email on the 21st of April, seeking information on how the decision was reached.
- This information was provided to the Complainant by Jennifer Younger HR, who wrote to him on the 6th of May explaining that all applications were reviewed by an assessment board, whom, using the competition booklets person specification as criteria, determined that the Complainant failed to meet the job requirements by not having an official ISL qualification.
- The Complainant sent an email on the 11th of May requesting a formal review of this decision under section 7 of the CPSA guidelines, arguing that the requirement for an ISL qualification “was wrong because it is restrictive to certain groups of people and effectively excludes deaf people”.
- This review was carried out by Ms. Caroline McKeon, Assistant Principal Officer, who decided that the original decision to reject the candidate was wrong as the Complainant’s fluency in ISL was not properly considered as an ‘equivalent’ qualification. The Respondent believed that this decision was wrong and argued that the original decision should still stand.
- The Complainant was made aware of the reviews findings after the recruitment process had closed.
What Did the WRC Decide?
The Workplace Relations Commission decided that the actions of the Respondent resulted in indirect discrimination against the Complainant under the Employment Equality Act. The adjudicating officer believed the Complainant was fully capable of performing the role due to his fluency in ISL and that the job criteria was not objectively justified, putting the Complainant at a disadvantage due to his disabilities. It was ruled that the complaint was well founded and that the Respondent had 42 days to pay the Complainant a total sum of €40,000 in compensation in accordance with the EU’s Directive 2000/78/EC, overriding the national statutory cap of €13,000.
Key Takeaways
1.European Law Can Override National Law, Including Compensation Caps
- Employers should be aware that EU laws generally override any conflicting domestic laws, in this case regarding compensation caps, due to the European Union’s principle of primacy.
- It’s important for employers to review their recruitment policies to make sure they are compliant with both EU and Irish law.
2.Internal Reviews Procedures Should Produce Real Outcomes
- In this case, despite the internal review upholding the complaint, no corrective actions were taken which the WRC was critical of.
- Employers should ensure that internal review procedures are effective in delivering such corrective actions to avoid such disputes.
3.Consider Adjustments in Recruitment Process for Disadvantaged Applicants
- The job requirements set out put the applicant at a disadvantage.
- Employers should recognise and remove any potential barriers to persons with disabilities in their recruitment process to improve fairness and inclusivity.
4.Establish That all Job Requirements are Necessary
- Employers should review job descriptions and ensure that any requirements set are objectively necessary to prevent issues such as indirect discrimination.
