FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 4/17FET
CLAIMANT: Christian Mallon
RESPONDENT: Department of Agriculture, Environment and Rural Affairs
The decision of the Tribunal is that the claimant’s claims are dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Murray
Members: Mr I Carroll
Mr I Foster
The claimant represented himself.
The respondent was represented by Mr E Foster, Barrister-at-Law, instructed by The Departmental Solicitors Office.
1. The claimant’s claim was for discrimination on grounds of disability and discrimination on grounds of religious belief in relation to the failure to shortlist him for a post in February 2016.
2. The issues for the Tribunal were as follows:
(1) Was the claimant disabled at the relevant time within the meaning of the Disability Discrimination Act 1995 (referred to below as the DDA)?
(2) Was the claimant subjected to direct discrimination on grounds of his disability and/or on grounds of his religion in relation to the adjustments which were put in place to enable him to apply for the post?
(3) Did the duty to make reasonable adjustments under DDA arise in this case and if so was it breached? The adjustment in issue in this case was the provision by the respondent of help to the claimant to complete an application form on his behalf.
SOURCES OF EVIDENCE
3. The Tribunal had the oral evidence from the claimant on his own behalf and had oral evidence from the following witnesses for the respondent: Mr A McKeown of HR Connect who dealt with the claimant in relation to his application form; Mr N Lavery Permanent Secretary of the Department who was on the short-listing panel and was involved in devising the criteria in this competition. The Tribunal also had regard to the documentation to which it was referred and considered the oral submissions of both sides together with the authorities to which it was referred.
4. The DDA sets out the definition of disability for the purposes of legislation. It is for the claimant to prove that he is disabled within the meaning of DDA and in order to do so he must bring forward evidence to show that he suffered at the relevant time from an impairment which had substantial adverse effect on his day-to-day activities and was long-term.
5. The elements of the definition of disability in issue in this case were whether or not the claimant suffered substantial adverse effects due to a physical or mental impairment and whether any such effects were on his ability to carry out day-to-day activities. In this regard the claimant in submissions stated that filling in application forms for jobs was something he did no more than four times a year and he appeared to concede that this meant that it did not amount to a day-to-day activity. Mr Foster however correctly conceded that it is open to us to decide this point in line with the legal authorities. It was accepted by the respondent that the claimant suffered from dyspraxia and that this is a life-long condition.
6. The employer’s duty to make reasonable adjustments is outlined in the DDA at s4A and states, insofar as is relevant to these proceedings, as follows:
“4A - (1) Where -
(a) a provision, criterion or practice applied by or on behalf of an employer, …
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”
7. In the case of Rowan v The Environment Agency  IRLR 20 the EAT outlined the steps that the Tribunal must go through in order to determine whether the duty to make reasonable adjustments arises and whether it has been breached. The steps relevant to this case, are as follows:-
(i) identify the provision, criterion or practice (PCP) applied that has put the claimant at a disadvantage compared to those who are not disabled;
(ii) identify the non-disabled comparator (where appropriate);
(iii) identify the nature and extent of the substantial disadvantage suffered by the claimant.
8. If the duty arises the Tribunal then goes on to determine whether the proposed adjustment is reasonable to prevent the PCP placing the claimant at that substantial disadvantage. This is an objective test.
9. Section 18B of the DDA sets out the factors that the Tribunal must consider when deciding whether it is reasonable for an employer to make any particular adjustment once the duty to make a reasonable adjustment has been triggered.
10. At Section 18B(2) of the DDA examples are given of steps which employers may need to take to comply with the duty to make reasonable adjustments. This is a non-exhaustive list.
11. The burden of proof provisions as outlined in the case of Igen Limited v Wong  IRLR 258 CA and subsequent cases such as Madarassy, apply to these proceedings.
12. It is for the claimant to prove facts from which we could conclude that the duty to make reasonable adjustments arose and was breached and if the claimant does so the burden shifts to the employer to show that it was not breached.
13. Direct discrimination is set out at section 5 of DDA. Direct discrimination under The Fair Employment and Treatment (NI) Order 1998 (as amended) (referred to below as FETO) is set out in similar terms at section 3 of that Order.
14. The burden is on the claimant to prove facts from which we could conclude that an act of direct discrimination on grounds of disability and/or religious belief occurred and if he does so the burden then shifts to the respondent to show that any adverse treatment was in no sense whatsoever influenced by the claimant’s disability and/or religious belief.
15. Mr Foster referred us in general to Madarassy v Nomura International PLC  EWCA Civ 33 and to the Rowan case. The two authorities of Wade v Sheffield Hallam University UKEAT/0194/12 and Burke v The College of Law and Anor  EWCA Civ 37 which were produced on the day of the submissions hearing by the respondent were specifically not relied upon by the respondent.
16. On the morning of the first day of hearing a bundle of documents was produced by the respondent and given to the claimant. It appears that there were difficulties prior to the hearing in agreeing a bundle. Within that bundle were medical reports provided by the claimant. The claimant did not bring any doctors to give evidence in relation to their reports.
17. The Employment Judge explained to the claimant that normally in a disability discrimination claim where the issue of disability is disputed by the respondent, the claimant gives evidence about the effect of his medical condition on him and also brings one or more doctors to stand over their reports and give evidence about the medical condition. The Employment Judge explained to the claimant that it was open to him to ask for an adjournment of the case if he wished to bring his doctors to give evidence in relation to their medical reports.
18. The claimant queried whether the doctors would attend and asked who would pay for their attendance as it would be expensive. The Employment Judge outlined that in some circumstances application can be made to the administration staff of the Tribunal for witness expenses to be paid and the claimant was offered time to see if that would be covered by the Tribunal administration. The claimant declined the time to find out about that point and stated that he wished to continue with the hearing and specifically did not want to adjourn the case to see if the doctors would or could attend as he had taken time off work for the hearing and had booked his flights accordingly.
19. The Employment Judge explained that the respondents whilst agreeing that the medical reports could be tendered in evidence without formal proof were not agreeing the content of the reports and that the respondent disputed that the claimant was disabled within the meaning of DDA. Despite this the claimant said that he wanted to go ahead with the hearing.
20. In view of the fact that the claimant stated that he had a learning disability and that the medical evidence stated that he had dyspraxia, the Employment Judge asked the claimant at the outset of the hearing whether he needed any particular adjustments or whether he wanted the Tribunal to take any measures to ensure that he could participate fully in the hearing. The claimant said that he did not require any such adjustments as any difficulties he had were in relation to writing and reading unfamiliar documents. He also stated that he could understand the bundle and declined further time to peruse it again. The Employment Judge indicated that breaks would be given at regular intervals for the witnesses and that if the claimant wished to have any breaks or needed extra time to read documents that he would be given that facility.
FINDINGS OF FACT AND CONCLUSIONS
21. The Tribunal considered all the evidence both oral and documentary and the submissions of both sides and found the following primary facts proved on a balance of probabilities. It is important to note that this decision does not record all the competing evidence but records the principal findings of fact drawn from an analysis of all of the evidence. The Tribunal applied the legal principles to the facts found to reach the following conclusions.
22. This case concerns the claimant’s application for the post of Deputy Secretary in the respondent Department. This was a high level post at Grade 3 being one of four Deputy Secretaries in the Department. Effectively the successful candidate is the top person in the Department in relation to Agriculture and the Agri-food Industry. The successful candidate acts as Chief Advisor to the Minister, has approximately 900 staff and a budget of approximately £335 million. We accept the evidence of Mr Lavery, the Permanent Secretary, that, due to the nature of the post there was a requirement for candidates to show that they matched specific criteria, and, particularly, that they showed professional qualifications and expertise in the field of Agriculture and the Agri-Food Industry.
23. The claimant agreed that his experience and expertise did not lie in the Agriculture of Agri-Food Industry. He further agreed that the form before the short-listing panel did not meet the eligibility criteria and that the panel’s decision not to short-list on the information before them could not be criticised. The claimant accepted that he would not have been appointed to the post and the height of his case therefore was that he had lost the opportunity to be short-listed and interviewed for the post. The claimant’s point was that he had a 50/50 chance of getting the job as his view was that he “had the understanding but not the experience”.
24. The competition was dealt with on the Department’s behalf by HR Connect. The key person in HR Connect dealing with the matter was Mr McKeown. The process involved completing a form which could be accessed online and which had sections relating to 5 eligibility criteria. Ultimately the claimant failed to satisfy criteria 2-5.
25. The application went live on 8 February 2016 and on 10 February 2016 HR Connect received an email stating as follows from the claimant:
i would like to apply for this role:
however i have a learning difficulty so i cannot complete forms
please accept my cv for this role
26. When the claimant highlighted to the respondent that he had a condition which meant that he had a difficulty filling in forms they offered three alternatives to him as follows:
(1) That they would post a hard copy to him for him to fill out with the help of someone else or for someone else to fill it out on his behalf;
(2) That someone else could fill out the online form for him and send it back;
(3) That if neither of those things was possible that he should come back to them to see if anything else could be put in place.
27. In the event the respondent then offered for the claimant to call in to the Belfast Office for one of their staff to fill out the form while he dictated it to them. It only then became apparent that the claimant lived in Scotland and could not easily come into Belfast.
28. In submissions the claimant relied on the fact that he had asked if the respondent would pay his flights to come over to fill out the form at their office. Mr McKeown in evidence indicated that the relevant policy related to the possibility of paying expenses for someone to come to interview or to assessment centres. We do not find this to amount to a reasonable adjustment as it would not have been reasonable for this prospective employer to pay for flights for this applicant in order to fill in the application form especially as the claimant had time to locate assistance to produce a completed application form.
29. In any event the claimant did not pursue this at the time and agreed to the proposal that Mr McKeown should telephone him to speak to him about the form on the telephone.
30. We have analysed very carefully the series of emails which then ensued. We find that the following is clear from those emails:
(1) The claimant wanted his CV to be used rather than to fill out an application form.
(2) After the claimant was informed that his CV was not acceptable, he wanted Mr McKeown to pick out the relevant parts from his CV and LinkedIn profile for the application form.
(3) From very early in the process the claimant repeatedly threatened to go to a tribunal if his demands were not met.
(4) The claimant was familiar with hyperlinks as he included them in several of his emails. The claimant was also familiar with copying and pasting from documents and websites as he did this in several of his emails in order to outline his legal rights.
(5) Mr McKeown was courteous and accommodating throughout. Mr McKeown sought advice from the Department whose Ms Quinn became involved in corresponding with the claimant. It was clear to us that the claimant’s suggestions were carefully considered by them.
(6) Mr McKeown made clear that he could not pick out information on the claimant’s behalf but that any draft that he produced at the claimant’s request had to be approved by the claimant.
(7) Mr McKeown repeatedly alluded to the deadline for the application form, namely 12 noon on Friday 26 February 2016.
(8) The claimant needed to click on a hyperlink to activate his HR Connect account to enable Mr McKeown to fill in the on-line application form.
31. It is clear to us from the series of emails that Mr McKeown went further than he could reasonably have been expected to go and that the claimant’s attitude was that it was entirely the respondent’s responsibility to elicit a completed application form from him.
Was the claimant disabled at the relevant time?
32. The medical evidence produced by the claimant was as follows:
(1) A report from an Education
Psychologist Dr Schneider dated
14 December 2014 which was produced in relation to the claimant’s participation in a Master’s Course at Robert Gordon University.
(2) A report from an Occupational Health Physician Dr Grainger dated 31 December 2015.
(3) A report from an Occupational Health Physician Dr Hanlon dated 10 August 2016.
A report from a
Consultant Psychiatrist Dr McLennan dated 10 August 2016. This report was
produced at the behest of a previous employer to explore the issue of
reasonable adjustments in relation to that post. The report from
Dr McLennan went through the following medical records and reports:
· Educational Psychology Report by Dr John Schneider, dated 14.12.2014.
· General Practice case notes dated 1977 - 16.06.2016.
· Letter from Dr Mark Grainger, Occupational Health Physician, dated 31.12.2015.
33. The claimant has a medical condition in the form of dyspraxia which is a developmental condition. This is described in the medical evidence as a processing disorder which for the claimant (in summary) affects his ability to write at speed, to spell and to construct sentences in writing. The following relevant extracts from the psychiatric report of Dr McLennan outline her opinion of the impairment:
(1) “He clearly has significant difficulties in communicating in written text, he does not know where to place capitals or full stops and spelling is poor at times. He has no idea where to begin and end a sentence and the quality and content of his emails frequently comes across as being very abrupt and rude and he is aware of this.”
(2) “In my view, Dr Mallon was unable to understand how to prepare a competence based response, as cognitively this would have been too difficult for him, given his Dyspraxia/Dyslexia. He would have been disadvantaged in that he would have been unable to think out logically his competences in different situations. Using the Situation, Task, Action, Result (STAR) approach was I think quite baffling for him. Had he been able to enlist the support of someone who understood his difficulties with Dyspraxia/Dyslexia, he may have been able to accomplish a reasonable written Application or described his competencies verbally”.
(3) “His Dyspraxia/Dyslexia makes it difficult for him to process certain kinds of information, he finds it difficult to perceive and process written information, he has no structure to do so as he has never had any rehabilitative or Educational Psychology support to try to partially overcome his difficulties. He finds it difficult to read labels on food stuffs as described, he does not read for pleasure and does not read newspapers, he has difficulty taking in written information but is better with verbal or pictorial information.”
(4) “His Dyspraxia/Dyslexia is a specific learning difficulty which represents a developmental disability and will also continue indefinitely. He has not been in receipt of any support to minimise his disability, although he has worked out a variety of strategies to try to do so, which work to some extent for him.”
(5) “The impact of Dr Mallon’s Dyspraxia/Dyslexia is substantial in some areas of his life, such as the processing of written information, processing and understanding text, and his ability to complete Application Forms/apply for employment”.
(6) “As his Dyspraxia/Dyslexia is a developmental disorder, he has suffered from this from birth and it will never improve although he may benefit from strategies in addition to those he has developed himself, which would be best developed in conjunction with an Educational Psychologist, possibly a Specialist Clinical Psychologist or a Specialist Occupational Therapist.”
(7) “His Dyspraxia/Dyslexia will never improve and nor will it worsen, however as described the effects could be ameliorated by Specialist intervention”.
(8) “In terms of his educational disability, other than self management, there are no interventions and without specialised treatment, his condition will continue. Even with input, his developmental disability will never resolve but could be ameliorated to some extent.”
(9) “It is of course up to the
Employment Tribunal to decide whether
Dr Mallon’s Dyspraxia/Dyslexia falls under the definition of a disability in terms of the Equality Act 2010. In my view, it does cause significant impairment in terms of processing written information and text, including his ability to apply for remunerative employment and sustain himself financially. He has difficulties with shopping because of difficulty in comparing products. He has significant difficulty processing written information as described in Dr Schneider’s Report.”
(10) “If there is a substantial disadvantage were there any further steps which might have facilitated Dr Mallon, in particular, to demonstrate that he could meet the minimum standards and be capable of the duties for the various jobs applied for e.g. a telephone call with him going through the competences? I suspect, although I have little evidence to substantiate this, that Dr Mallon did not really understand the requirements of the post, nor the minimum standards, because of his learning disability. Had this been put to him perhaps in simpler terms with examples of the competences required, I think Dr Mallon could have described his work experience. Had he had further support such as a telephone discussion or having been granted an interview to go through the minimum criteria, he may have been better able to demonstrate whether or not his experience met the minimum standards”. (emphasis added).
34. In this case the claimant stated that his specific problem is with filling out unfamiliar forms. The medical evidence outlines that a difficulty for the claimant is that when he is shopping he cannot read labels or compare labels. The condition affects his ability to write, or spell, at speed and affects his ability to read lengthy documents. The psychiatrist’s ‘suspicion’ that his dyspraxia may have meant that he did not understand minimum standards for that post, is not strong enough evidence to show that this was a feature with the post in issue in this case. To be clear, the claimant’s focus in this case was on the requirement to set out in writing his experience matched to the criteria: he did not attack the use of criteria nor did he criticise the use of a form.
35. The respondent accepted that the claimant suffers from dyspraxia and that it is a life-long condition. The respondent contended that the claimant failed to show that the adverse effects due to that condition constituted substantial adverse effects on day-to-day activities.
36. We do not find that filling in application forms is outside the scope of day-to-day activities despite the apparent concession by the claimant. Filling in forms (whether in hard copy or online) is a fact of modern life and it is our finding that that is a day-to-day activity. The claimant’s point was that it takes him longer to complete forms, that they need to be proof read and indeed he needs someone to fill things in for him.
37. The question for us is whether that is enough to show substantial adverse effect. We have to look at the combination of the adverse effects which is the difficulty with application forms, the difficulties in writing and spelling. On the medical evidence in this case we find that the claimant was a disabled person at the relevant time for the purposes of DDA.
Telephone call Wednesday 24 February 2016
38. The agreement between the claimant and Mr McKeown was that Mr McKeown would telephone the claimant so that the claimant could dictate his answers for the form. The claimant stated that he would be available for approximately 30 minutes on the telephone on Wednesday 24 February 2016 to enable Mr McKeown to take down his answers for the application form.
39. Mr McKeown registered the claimant online and sent him a link for him to activate so that the application form would be completed by Mr McKeown during the telephone call which was to take place. The email requesting the claimant to click the hyperlink to activate his account stated as follows:
“Thank you for registering with NICS recruitment.
Your account has been created but must be activated. Please click on the link below to activate your account.
40. The claimant did not activate the account so the telephone call could not proceed in the way anticipated by Mr McKeown. The claimant stated in evidence that he later activated the account with his partner’s help.
41. It was agreed by the parties that the telephone call which took place on the Wednesday was 35 minutes long. Mr McKeown contended that the first 10-15 minutes were taken up with the claimant essentially complaining about the fact that his CV was not accepted and that Mr McKeown was wasting time. It was the claimant’s case that the telephone call was very pleasant and he could not understand how so little information was taken down by Mr McKeown in that period.
42. We accept the account given by Mr McKeown of that telephone call for the following principal reasons:
(1) The emails show that the claimant was very unhappy about the fact that his CV was not being accepted and that accords with the account given by Mr McKeown that the claimant complained on the telephone about this.
(2) We had concerns about the claimant’s credibility and reliability as a witness as set out in this decision.
(3) The claimant agreed in evidence that it was he who ended the call citing lack of time. It was a theme in the claimant’s evidence that he could not make time (and indeed should not have to do so) to receive phone calls to dictate his answers.
43. We find as follows in relation to that telephone call:
(1) Mr McKeown explained to the claimant that he could not fill out the application form as it had not been activated by the claimant. He therefore typed onto a Word document the answers dictated by the claimant on the phone. Mr McKeown told the claimant that he would type up his answers in a Word document and send them to the claimant for approval. We specifically reject the claimant’s contention that Mr McKeown agreed to put the draft in the body of an email rather than as an attachment. (See below).
(2) In that conversation Mr McKeown was only able to elicit answers to criteria 1, 2 and 3. Mr McKeown repeatedly had to tell the claimant that he was merely a scribe in answer to the claimant’s repeated insistence that he should cut and paste from his CV. The claimant was agitated and angry and it was the claimant who ended the conversation stating that he needed to get back to work.
(3) The claimant had to be pushed by Mr McKeown for answers to the various criteria.
(4) It was the claimant who was effectively obstructive about arranging another time which would suit for another telephone call and, in view of the imminent deadline, Mr McKeown reluctantly agreed to cut and paste what he thought was relevant from the claimant’s CV and to send it to the claimant for approval.
E-Mail and attachments Wednesday 24 February 2016
44. Approximately 1½ hours later that same day, Mr McKeown sent an email to the claimant with three attachments and reminded him of the deadline on Friday 26 February 2016. One of those attachments was the word document with the draft answers to criteria 2-5. Mr McKeown therefore acted speedily to provide the document to the claimant for his approval.
45. Mr McKeown’s email of Wednesday 24 February 2016 which was sent at 1.27 pm to the claimant with three attachments stated as follows where relevant:
“As promised I have cut and pasted the information from your CV into what I think are the appropriate places of the application form.
I would be grateful if you could let me know if you are content with this before I log it on the online application for you or add anything else that you wish. I must point out that you are restricted to 3700 characters for each criterion.
I have attached a copy of the Candidate Information Booklet and Application Form so you can see the layout and the additional clarification of the Eligibility Criteria.
You will have received an authorisation email for me to access the online application as discussed I would be grateful if you could respond as directed in the email so that I can access your account to input your details.
Finally as the closing date and time is 12 noon on Friday 26th February 2016, the sooner you can confirm the details with me the sooner I can get your application submitted.
46. The email which was sent with three attachments was received by the claimant. The claimant opened one of the attachments to find a blank application form, he decided not to open the second attachment because it was the candidate information booklet which he said would not add to the information he had gleaned for the advertisement and he decided not to open the third attachment titled “application notes” which was a Word document containing information that Mr McKeown had cut and pasted from the claimant’s CV for the claimant to approve, amend or add to.
47. At first the claimant stated in evidence that he had opened the blank application form on the Wednesday and then he said he opened it on the Friday morning which was the deadline day. Whichever account is correct leads to the key question as to why he did not immediately email or ring Mr McKeown to ask what was going on as both sides agreed in evidence that the way the conversation was left on the Wednesday was that McKeown would send some text for the claimant’s approval. The claimant made no contact with Mr McKeown between the conversation on the Wednesday and the Friday morning.
Friday 26 February 2016
48. As Mr McKeown had received no response to his email nor approval from the claimant, he phoned the claimant on the morning of Friday 26 February 2016. We accept Mr McKeown’s evidence that the claimant became agitated and asked what questions needed responded to. Mr McKeown sent through the questions and the claimant responded in writing and it was those answers that Mr McKeown put into the on-line form.
49. There were some computer difficulties in receiving the claimant’s document in response to Mr McKeown’s email that morning and the deadline of 12 noon passed before the application form could be submitted online. In view of the computer difficulties, Mr McKeown arranged for the deadline to be extended to allow the claimant’s application form to go in.
DDA - Direct Discrimination
50. The claimant’s claim under this heading amounted to the allegation that there was undue delay in dealing with his request for adjustments because of his medical condition. The claimant alleged that he had to “beg” for adjustments to be made for him.
51. We reject that claim as it is clear from the sequence of events following the claimant’s first request for adjustments that the respondent (and Mr McKeown in particular) made extensive and timely efforts to explore with the claimant the adjustments that might meet his needs. It is entirely reasonable for a prospective employer to explore the issue with a disabled applicant to see what steps it can reasonably take in order to accommodate difficulties to do with the medical condition. We find that all dealings with the claimant in this case were courteous and reasonable and there was no undue delay in dealing with him.
The Duty to Make Reasonable Adjustments
52. The first issue for us is to identify the provision, criterion or practice (PCP) applied by the respondent which placed the claimant at a substantial disadvantage due to his impairment compared with those people who do not have his impairment.
53. Mr Foster submitted that the PCP in issue in this case was the completion of an application form. It is our finding that the PCP was the requirement for a candidate to produce a completed application form. There was no obligation placed by the respondent on the applicants in this competition that they should fill in the form themselves nor was there a problem with candidates availing of help to complete the form.
54. The reasons given by the claimant for not getting someone else (other than the respondent) to help him with the form were as follows:
(1) He did not want to tell his partner that he was applying for a job in Belfast.
(2) He did not want to go to a CAB because he had previously gone to them for help with forms and had to queue up for a long time. The claimant also stated that he had seen them previously, was told to fill in a form and come back next day, and the claimant did not do so as he was recovering from surgery.
(3) He said he did not want anyone at work to know that he is making an application nor did he want his friends to know that he had a medical condition;
(4) He did not have any time because he was just a few months into a new job.
55. It was clear from the evidence that he had previously had help from a Job Centre in filling out forms and no good reason was given to us as to why he could not do that again.
56. We do not accept that it was a problem for the claimant to speak to his partner to the extent alleged by the claimant given that he did get his partner’s help to activate the online registration. The other reasons given by the claimant were essentially his choice and we find that he did not give any good reason for failing to obtain help from the CAB or from the Job Centre. None of the reasons given by the claimant related to the disability relied upon in this case. We accept the point made by the respondent that no responsibility was taken by the claimant to seek assistance from any source other than the respondent.
57. We do not find that the application of the PCP (which was to produce a completed application form) placed the claimant at a substantial disadvantage because of his disability because he could have obtained help to fill it in, his disability did not impede him in availing of any such help and he had enough time before the deadline to do so.
58. The claimant’s initial request (which
he persisted with through the process with
Mr McKeown) was that his CV should be accepted instead of an application form. For the avoidance of doubt we do not find it to be a PCP placing the claimant at a substantial disadvantage due to his disability for an application form to be used in the competition for the following principal reasons:
(1) The reasons for using an application form were reasonable and valid and included the requirement for applicants to show from their experience and qualifications how they met specific criteria;
(2) This was especially important for this high-level post as an element of the job related to specific expertise and technical knowledge of the Agri-foods Sector;
(3) The claimant accepted in evidence that it was reasonable for an application form to be used.
Credibility/reliability of the claimant’s evidence
59. We do not accept the claimant’s evidence that he could not click the activation button on the email. From the emailed correspondence between the parties it is clear that the claimant was familiar with using a computer in that he cut and pasted information and hyperlinks from websites and sent them to the respondent. He stated that he got his partner to help him activate the form but we do not accept the reason given by him that he was not familiar with the concept of clicking on a blue link on his computer screen. It is our finding that this is an example of his view that he had no responsibility at all for ensuring that his application form was completed and that it went in on time. The claimant’s evidence on this point tainted his credibility for us.
60. The claimant made the point he had a difficulty about accessing emails in work and this was one of the reasons for him not seeing some emails and not activating the online registration. We do not accept this because it is clear from the emails that he was accessing personal emails in work at various times in the day.
61. The claimant made the point that he had a problem with opening attachments. There was no reasonable explanation given to us by the claimant for failure to open the third attachment which was Mr McKeown’s typed Word document with the criteria headings and the information he had gleaned from the claimant on the telephone and from his CV contained in it. The claimant’s evidence on this point tainted his credibility for us.
62. The claimant failed to chase up with Mr McKeown the lack of any completed application form. The claimant’s evidence was at best confused, and at worst misleading, in relation to when he opened the attachments in that email. See paragraph 47 above. This tainted his credibility for us.
Religious Discrimination Claim
63. At the outset of the hearing the claimant identified the scope of his religious discrimination claim as follows:
(1) That Mr McKeown discriminated against him on grounds of his religion because he knew that the claimant was a Roman Catholic, and Mr McKeown accessed his LinkedIn profile which showed the school the claimant attended. Mr McKeown denied accessing the claimant’s profile. In any event, it was common case that Mr McKeown filled in the monitoring form and therefore knew the claimant’s perceived religious affiliation. The height of the claimant’s point against Mr McKeown was that he could not understand why Mr McKeown dealt with him as he did and that the claimant thought this might be to do with his religion because the claimant checked Mr McKeown’s LinkedIn profile and it showed that he was active in his (Protestant) church and Mr McKeown knew that the claimant was Roman Catholic.
(2) The claimant stated that the short-listing panel discriminated against him on grounds of his religion as they must have known that he was a Roman Catholic as he had given that information to Mr McKeown.
64. During his evidence the claimant withdrew his allegation that the short-listing panel had discriminated against him on grounds of his religion as he accepted that the documents which were before the short-listing panel were anonymised and did not have the monitoring form (with his religion on it) before them.
65. We reject the claimant’s claim of discrimination on grounds of religion. It is not enough for the claimant to say that simply because there was a difference in religion between him and Mr McKeown that this meant that any treatment of him was because of his religion.
66. There was nothing in the evidence to indicate that any treatment of the claimant amounted to detrimental treatment nor was there evidence that any treatment was tainted by religious discrimination. We therefore find that the claimant has not shifted the burden of proof and we reject that claim in its entirety.
67. The claimant’s overriding desire at the relevant time was that his CV and LinkedIn profile should be used rather than that he should produce a completed application form. This seemed to colour adversely his dealings with the respondent’s managers.
68. This is not a case where the claimant was required to complete a form under pressure or in examination conditions. There was sufficient time for him to get the help that he required.
69. We find that the claimant seemed to believe that as soon as he raised the issue of having a disability which had an impact on his ability to fill out forms that this meant that the burden was on the prospective employer to elicit a completed form from him by any means. We find that this goes beyond what is reasonable in the circumstances of this case.
70. We accept McKeown’s account that he made it clear to the claimant that it was for him to approve the document that he would send him. We do not accept the claimant’s account that in the telephone call he told McKeown that any information had to be sent in the body of an email and not as an attachment.
71. Permeating this contact was the claimant’s belief that it was not his responsibility to “tailor” his information to the criteria as it seemed to be his belief that that was for the respondent to pick out the relevant information from his CV and LinkedIn profile despite Mr McKeown repeatedly making it clear that this was the claimant’s responsibility.
72. We do not accept the claimant’s case that it was confusing to him that an email was sent to him with three attachments in circumstances where he opened one of the attachments, chose not to open the other and for reasons unknown did not open the key document which was the draft produced by Mr McKeown. We specifically reject the claimant’s contention that Mr McKeown agreed to put the detail in the body of an email rather than as an attachment.
73. The fact that the claimant did not open attachments and did not chase up the matter was his own fault and cannot be laid at the door of the respondent. We specifically find that the respondent did, in the form of Mr McKeown, act reasonably on the Wednesday, Thursday and Friday.
74. The claimant was disabled for the purposes of DDA at the relevant time. The relevant impairment in this case is the claimant’s dyspraxia.
75. The claims of direct discrimination on grounds of disability and/or religion are dismissed.
76. The duty to make reasonable adjustments did not arise as the claimant has failed to show that the PCP caused him to suffer substantial disadvantage due to his disability in the circumstances of this case.
77. Even if the duty to make reasonable adjustments did arise, the respondent complied with it by offering a scribe to take down the claimant’s answers on the phone. The fact that the process broke down was not the respondent’s fault and that breakdown did not amount to discrimination.
78. The claimant’s claims are dismissed in their entirety.
Date and place of hearing: 6-8 March 2017, Belfast.
Date decision recorded in register and issued to parties: