Mr. Tsvetko Mitov vs Irish Society of Chartered Physiotherapists(Represented by Kent Carty Solicitors)
1. DISPUTE
1.1 The dispute concerns a claim by Mr. Tsvetko Mitov that he was discriminated against by the Irish Society of Chartered Physiotherapists on the grounds of race within the meaning of Sections 6(1) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when his application for membership of the respondent organisation was refused. The complainant has also referred a claim of victimisation under Section 74(2) of the Employment Equality Act, 1998.
2. BACKGROUND
2.1 The complainant is from Bulgaria and he applied to the Irish Society of Chartered Physiotherapists, herein after referred to as ISCP, for membership of the Society. His application was rejected and he persisted in his attempts to establish the criteria required to have his application accepted. The complainant failed in his attempts and he finally suggested to the respondent that he was been treated in a discriminatory manner under the Employment Equality Acts, 1998. The respondent rejects this allegation.
2.2 Consequently the complainant referred a complaint of discriminatory treatment to the Director of Equality Investigations on 14th March, 2003 and a subsequent claim of victimisation on 28th April, 2004 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the two claims to Gerardine Coyle, Equality Officer on 25th July, 2003 and 28th May, 2004 respectively for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing took place on 29th June, 2004. Further information was received from the respondent on 1st July, 2004.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant states that at the beginning of 2002 he applied for membership of the respondent organisation. When he was submitting his application form along with supporting documentation to the Admissions Officer the complainant states that he was told that there were other members of the ISCP who graduated from the same Academy as himself. According to the complainant he saw a member's name on the computer and the place of graduation was the National Sports Academy, Sofia, Bulgaria. The complainant notes that the name he saw was not Bulgarian but says that this is not surprising as there are many international students, mainly from Greece, who study at the National Sports Academy.
3.2 The complainant says that a couple of weeks later he received an acknowledgement from the respondent organisation dated 15th April, 2002 informing him that his papers were in order and had been passed to the Education Committee for assessment. Then on 29th April, 2002 the complainant was informed in writing that his application was unsuccessful because the Committee found that his course of study did not meet the standards required to become a member of the ISCP. The complainant states that, on receipt of this letter, he contacted the respondent to establish their criteria for assessing new applicants. He noted that some members of the respondent organisation had undertaken the same course of studies as himself and from the same Academic Institution. According to the complainant he was not satisfied with any response he received and he referred a claim to the Equality Tribunal for investigation and decision. The complainant notes that when he notified the respondent that he had taken an equality case he was sent a letter dated 28th February, 2003 with an attached form for completion by the National Sports Academy so that the respondent could reassess his application.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent contends that the complainant's submission should not be admitted as it is unsigned and there is no evidence that it comes from the complainant. Without prejudice to this contention the respondent states that it is not an employer in relation to the complainant or an employment agency within the meaning of the terms of the Employment Equality Act, 1998 in that it does not provide services relating to the finding of employment for prospective employees or to employers and is not a provider of agency work.
4.2 The respondent states that, having regard to Section 13 of the 1998 Act, it is not acting on the question of membership but acting as the designated sole and competent authority on behalf of the Minister for Health with regard to recognition of qualifications for Physiotherapy. Acting with this authority the respondent states that it cannot compel persons to become members. However persons who do become members are entitled to work in the public service. According to the respondent its function is to ensure a minimum standard in practice of physiotherapy and to co-ordinate standards within the EU. The respondent does acknowledge that, in carrying out its function, it must act in a non-discriminatory manner. In this case the respondent states that there is no evidence that the complainant is:
A. a citizen of the EU;
B. has a right to work and stay with the jurisdiction;
C. has provided the information sought by the respondent to enable the matter to be further considered.
Without prejudice to these failures the respondent states that the complainant has not met with the standards of education and clinical experience required as practitioners within the State.
4.3 It is the respondent's submission that, in relation to the complainant's application, his qualifications are too low in core physiotherapy areas. Furthermore the course content from transcript is not comparable to that of an Irish physiotherapy degree programme. The respondent submits that there is no evidence of training in cardio respiratory care. According to the respondent comparison cannot be made with one applicant from the same University who was admitted in 1992 because this was before the respondent became the designated authority in 1992 and the applicant held a masters degree. The respondent states that it has updated its standards and procedures and the information required in application forms is now more detailed.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his race in terms of Sections 6(1) and 6(2)(h) and contrary to the provisions of Section 8 of the Employment Equality Act, 1998. The complainant is a Bulgarian national. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
5.2 The respondent has held that the complainant's submission should not be admitted as it is unsigned and there is, therefore, no evidence that it has come from the complainant. I do not accept this contention. The submission from the complainant was unsigned. However it contained his name and address on the front page and had his name (in type) at the end of the submission. The submission set out the details of his claim and I am satisfied that this submission came from the complainant. At the hearing of this claim the complainant stated that he had omitted to sign his submission and he apologised for this omission.
5.3 In a letter to the Equality Officer dated 4th May, 2004 the respondent stated
"we take the view that all correspondence that has passed after the time of the initial complaint should not have been admitted as this matter is in the nature of a Judicial Hearing and a continuing correspondence, after submissions, is Sub Judice". A claim under the Employment Equality Act, 1998 to the Equality Tribunal is not a legal action in a Court of Law. An Equality Officer investigating such a claim will have regard to all aspects of the claim and consider all correspondence received in relation to the claim. This approach is supported by previous decisions of the High Court2.
5.4 The respondent states that in February, 1994 it was designated the sole competent authority for the recognition of qualifications for physiotherapy. At the hearing of this claim the respondent stated that its purpose was to validate qualifications as opposed to deciding on membership of the Irish Society of Chartered Physiotherapists hereinafter referred to as the ISCP. Hence if a person's qualifications are validated then the person can decide whether or not he/she wishes to become a member of the ISCP. Having said that the respondent accepted that a person could not become a member of the ISCP if their qualifications did not meet the standards required. Furthermore a person who is not a member of the ISCP will not obtain employment in the Public Sector. According to the complainant a person who is not a member of the ISCP will have difficulty gaining employment at all because of lack of recognition and prohibitive insurance costs. Section 13 of the Employment Equality Act, 1998 states:
"A body which -
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation".
I am satisfied that the respondent does control the entry to or the carrying on of the profession of physiotherapy and is required not to discriminate against any person in relation to membership within the meaning of Section 13 of the Act.
5.5 The facts of this case are that the complainant sought to have his qualifications validated by the respondent so that he could become a member of the ISCP. He contacted the ISCP in November, 2001 and submitted all relevant documentation on 29th March, 2002. On 15th April, 2002 he was informed by the respondent that his documents were in order and would be passed to the Education Committee for assessment. Then on 29th April, 2002 he was informed that the Overseas Assessment Sub-Committee held that his qualifications did not meet the required standard. The complainant sought an explanation for this decision and asked what criteria he was required to meet in order to attain the standard. He also noted that a person of a different nationality but who had graduated from the same University as him was a member of the ISCP. The complainant was not satisfied with the respondent's persistent failure to answer any of his queries. This culminated in the complainant advising the respondent by letters dated 11th December, 2002 and 10th February, 2003 that he considered that he was been discriminated against and in the latter letter he noted that he could bring an equality case against the respondent under the Employment Equality Act, 1998. On 17th February, 2003 the respondent informed the complainant in writing that his application for membership of the ISCP was unsuccessful and that this decision was final. Then on the 28th February, 2003 the respondent issued the complainant with two forms namely an Undergraduate Clinical Practice form and a Clinical Internship form to be completed by the University he had attended so that it (the respondent) could re-examine the complainant's application in the light of more detailed information on his qualifications. This completed form, along with his original application form and supporting documentation, were returned to the respondent on 12th November, 2003. The complainant received no communication from the respondent detailing the outcome to the examination of the additional information and he wrote a letter dated 11th March, 2004 asking for an update on the position. He received a response dated 12th March, 2003 noting that the respondent's solicitors were now dealing with the matter. By letter dated 12th April, 2004 the complainant wrote to the respondent pointing out that its solicitors are not in a position to assess his application and asking that it be processed. Consequent on this the complainant referred a complaint of victimisation to the Director of Equality Investigations and this was assigned to me for investigation and decision.
5.6 According to the respondent it receives many applications to have qualifications validated from overseas students. Applications complete with all relevant documentation are examined and assessed by the Overseas Assessment Sub-Committee. This sub-committee has six members comprising academics representing Universities, management persons in hospitals and clinical persons who work with students. The committee meets every four to six weeks to review applications and validate qualifications. If an EU applicant does not meet the standard it is allowed a period of adaptation. At the hearing of this claim the respondent noted that in the year from July, 2002 to June, 2003 it received 333 applications from overseas (i.e. Australia, Canada, UK, South Africa, Pakistan, Nigeria, India, etc.). Of these applications 199 non EU and 71 EU applicants were accepted. A total of 17 non EU applicants were rejected and a period of adaptation was granted to 22 EU applicants. The remaining applicants were not processed as documentation was not complete.
5.7 The respondent emphasised that the decision to validate qualifications is based on each individual application and the qualifications contained therein. The respondent states that overseas courses must be comparable to that of an Irish Physiotherapy course and in assessing comparability regard is had to the academic content of the course and the completion of a minimum of 1,000 supervised clinical hours in relevant disciplines. The respondent noted that it is also an accrediting body for Physiotherapist courses in Ireland and it undertakes this task every 5 years to ensure that the Irish Universities maintain the standards it requires. By way of example the respondent noted that it has happened that an applicant with a particular qualification from a particular University has been accepted whereas another applicant with this same qualification from the same University was rejected because the number of clinical hours undertaken by the latter was lower than that undertaken by the former. The respondent also explained that it does not outline to applicants what standards it employs in making its assessment. According to the respondent this concurs with international practice. However the respondent says that it is more accessible than many other countries where communications with applicants is in writing and there is no provision for the appeal of the decision.
5.8 Section 36(5) of the 1998 Act states that:
"Nothing in this Part ... shall make it unlawful for a body controlling the entry to, or carrying on of, a profession, vocation or occupation to require a person carrying on or wishing to enter that profession, vocation or occupation to hold a specified educational, technical or other qualification which is appropriate to the circumstances"
Having regard to this Section of the Act I am satisfied that there is no evidence that the process of validating qualifications by the ISCP was not objective or that it was discriminatory on the grounds of race. A similar finding was made in the case of Henning v An Bord Altranais3. In other words I find that the decision to reject the complainant's application to validate his qualifications and ultimately prevent him from becoming a member of the ISCP was not discriminatory on the grounds of race. Applications are assessed on the basis of their merits and no distinction is made on the basis of nationality. Having said that, the respondent's failure to set out its criteria does inevitably mean that there is a lack of transparency in its procedures which can promote claims of discrimination. It is clear from the correspondence between the complainant and the respondent that the latter failed to respond to any of the queries raised by the complainant. For example when asked for the criteria the respondent could have told the complainant that it does not make the criteria it employs available to applicants, but it failed to do so. Again when asked about the applicant whose qualifications had been accepted and who had undertaken a similar course in the same University as the complainant the respondent could have indicated that the course was not the same, but it failed to do so. This failure by the respondent led to a very real and understandable frustration on the part of the complainant.
5.9 The complainant has alleged that he was subjected to victimisation by the respondent in terms of Section 74(2) of the Employment Equality Act, 1998 when he was told that additional information he had submitted for assessment had been passed to the respondent's solicitors in the light of his action against the respondent. In a responding letter the complainant had correctly pointed out that the respondent's solicitors did not have the competence to assess the additional information he had submitted. Section 74(2) of the 1998 Act provides that:
"... victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
(a) ...
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment.
(c) ...
(d) ..."
In this case the complainant had made a complaint of alleged discriminatory treatment on the grounds of race under the Employment Equality Act, 1998 in good faith. I am satisfied that the respondent's failure to inform him of the outcome of its assessment of the additional information he provided (at the respondent's request) because he had referred a complaint under the 1998 Act resulted in the complainant being penalised for having referred a complaint in the first instance. In the circumstances I am satisfied that the complainant was subjected to victimisation by the respondent under the provisions of the
Employment Equality Act, 1998.
Other Issues
5.10 The complainant noted that the fee he had to pay to the respondent to have his qualifications validated was higher than that paid by applicants from EU member countries. It was his contention that this was discriminatory on the grounds of race. There is clearly a difference in treatment between applicants from EU member countries and applicants from non EU member countries. However without information on the basis for the difference in costs it is not possible for me to find that the complainant has been discriminated against on the grounds of race in this regard.
5.11 The complainant was critical of the delays from when he first applied to have his qualifications validated. The respondent denied that it was responsible for the delays and noted that it took the complainant from February to November, 2003 to resubmit additional information regarding his qualifications which it had requested. It is clear that the complainant was frustrated by the failure of the respondent to respond to his queries as noted above and this contributed to the delays.
6. DECISION
6.1 In view of the foregoing I find that the Irish Society of Chartered Physiotherapists did not discriminate against Mr. Tsvetko Mitov in terms of Section 6(1) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 13 of that Act when it refused to validate his qualifications and thus enable him to become a member of the ISCP.
6.2 I further find that Mr. Mitov was victimised by the ISCP within the meaning of Section 74(2) of the 1998 Act when he was penalised for having in good faith referred a complaint of discriminatory treatment under that Act.
6.3 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the respondent -
- to pay the complainant the sum of €10,000 by way of compensation for the stress suffered as a result of the victimisation;
- to examine its procedures to make them more transparent so as to avoid allegations of discrimination under the provisions of the Employment Equality Act, 1998.
______________________
Gerardine Coyle
Equality Officer
22nd July, 2004
2 High Court - Long v The Labour Court - May, 1990
3 Equality Officer Decision - Ms. Ji-Youn Henning v An Bord Altranais - DEC-E-2004-001