The State body overseeing special education for adults and children with disabilities has been ordered to pay €40,000 in compensation to a deaf man for denying him a job interview because he lacked an academic qualification in Irish Sign Language.
The National Council for Special Education was ruled to have indirectly discriminated against the job applicant, Noel O’Connell, in breach of the Employment Equality Act 1998, when it turned down his application for a post as “adviser deaf/hard of hearing” in April 2022.
In a significant development, the tribunal decided to set aside the €13,000 cap on compensation in an employment access case set out in Irish equality law.
Michael Kinsley, appearing instructed by Sinead Lucey of the Free Legal Advice Centre (Flac), said their client was “well qualified” for the job in view of the fact that he was fluent in Irish Sign Language (ISL) and holds a PhD in deaf education.
O’Connell’s first language was ISL, as he had been deaf since childhood and does not communicate orally, the tribunal was told.
The following month, he was told his application for the job “had not been shortlisted”. When he asked why, the NCSE told him the only reason was that he “did not have an academic qualification in ISL”, Kinsley said.
“The [assessment] board determined that the criteria was specific in wanting a formal qualification in ISL and that you had failed to demonstrate in your application that you meet this requirement,” a human resources officer wrote.
O’Connell then sought a formal review of this decision under the code of practice for public service appointments. He argued that making a sign language qualification an essential requirement of the post was “wrong” because it “effectively excludes deaf people”.
The relevant clause in the job specification required “a qualification in ISL based on the common European language framework or equivalent”, the tribunal heard.
When a more senior civil servant at the NCSE looked at O’Connell’s complaint, she read the words “or equivalent” as “meaning an ISL qualification or equivalent” rather than an “equivalent qualification”.
On that basis, the senior official decided O’Connell did meet the requirements, acknowledging his status as a native user of ISL and additional experience met the requirement in the candidate handbook.
Overruling the assessment board, the senior official declared the rejection of his application “not upheld in this case”, the Workplace Relations Commission heard. By then, the recruitment competition was closed.
Mary-Paula Guinnness, instructed by Eversheds Sutherland for the NCSE, said in a legal submission that the senior civil servant’s decision was “fundamentally flawed”.
“A formal qualification in Irish Sign Language can be achieved by a deaf or a hearing person and therefore it is simply incorrect to assert … that it ‘effectively excludes deaf people’,” Guinness said.
“There is clear, objective justification for the qualifications required for the role, and therefore there is no discrimination,” Guinness added.
Kinsley said the requirement for a formal academic qualification in Irish Sign Language was a condition that disadvantaged deaf applicants “disproportionately” and was indirect discrimination.
Adjudicator Jim Dolan ruled in favour of O’Connell’s complaint and wrote: “I believe the respondent’s actions amount to indirect discrimination against the complainant.”
Dolan noted submissions from the NCSE that there was a €13,000 cap on compensation for an employment-access case under Ireland’s domestic equality law.
The complainant side had cited the requirement for “effective, proportionate and dissuasive” compensation set out in European law.
Setting aside the domestic legislation, Dolan awarded €40,000 for the breach.
O’Connell thanked FLAC and welcomed the outcome of the case in a statement on Wednesday.
“I hope that this case will prompt all employers to reflect on their recruitment practices and policies and to ensure that they are compliant with the rights of people with disabilities,” he remarked.