Burke AND FÁS, Dublin
1. DISPUTE
1.1 This dispute concerns a claim by Mr Gerard Burke that he was discriminated against by FÁS on the ground of age contrary to the provisions of the Employment Equality Act, 1998 by virtue of the wording of an advertisement in one of the company's offices.
1.2 The complainant referred a claim to the Director of Equality Investigations on 13 September 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 18 November 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 24 October 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 In July 2002, the complainant visited the FAS office in D'Olier Streetin Dublin, where he saw an advertisement for a Trainee Telecoms Engineer. He was interested in the position as he had recently updated his qualifications in the area of telecommunications. He felt he would like to discuss his experience and qualifications with the advertising company, and was prepared to accept the salary relevant to a trainee position. The complainant was given a printout of the advertisement by an employee in FAS and sent a copy of his CV as required.
2.2 No reply or acknowledgement was received from the advertiser. The complainant considered that the sole reason for his unsuccessful application related to his age (45 years) and the wording of the advertisement which stated that the position offered "an ideal opportunity for a young candidate...". The complainant said that as author and advertiser for this position FAS was responsible for a policy of age discrimination which was unhelpful in his case.
2.3 He said that as a result of this experience he no longer felt that the resources of FAS to be something which he could avail of in his search for employment. He said he felt that he had been discriminated against in favour of younger applicants.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent said it had no allegation to answer in respect of the complainant being discriminated against in terms of his application for the advertised position. It pointed out that the complainant did apply for the position so the advertisement itself did not act as a barrier to him making the application. The respondent said the advertising company made the decision as to whom to shortlist or interview and, if the complainant felt that he had been discriminated against in this regard, he should have referred a claim against that company.
3.3 The respondent said it was very conscious of its responsibilities under the Employment Equality Act and submitted evidence of its equal opportunity code of practice and of the training given to its staff in this area. It submitted that this provided it with a defence as envisaged in section 15 of the Act which deals with vicarious liability. The section states:
(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee-
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
3.4 The respondent concluded by rejecting the claim of discrimination against the complainant on the ground of age. It said it had no involvement in determining which job applicants the advertising company selected for interview or indeed which applications the advertising company decided to acknowledge or respond to. It requested the Equality Officer to dismiss the complainant's claim.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of age contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include age. Section 10 provides that:
(1) A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which--
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention.
(2) For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which-
(a) connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic,...
then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever ground is relevant in the circumstances.
4.3 The substantive point in this claim is straightforward. In the case of Equality Authority v Ryanair (DEC-E2000-014), the Equality Officer said "I find, therefore, that the use of the word "young" clearly indicated, or might reasonably be understood as indicating, an intention to exclude applicants who were "not young", i.e. applicants who were "middle aged" or "old". Furthermore I find that the use of the word "young" to describe the type of person required for the position indicated, or might reasonably have been understood as indicating, an intention to discriminate against a person who was "not young". It is my view that the use of the word "young" as a requirement in this employment advertisement constitutes clear discrimination." I am satisfied that the same principle applies in this case and the advertisement was discriminatory.
4.4 However, in relation to discrimination in advertisements, it would appear that there is no provision for an individual complainant to refer such a claim. The 1998 Act provides at section 85 (1) (d) that such claims may be referred by the Equality Authority. The predecessor of the 1998 Act, the Employment Equality Act, 1977, had an almost identical provision at section 20. According to Curtin (Irish Employment Equality Law, Round Hall Press, 1989) "The [Employment Equality] Agency has been given sole power under section 20 (d) of the 1977 Act to institute proceedings against discriminatory advertisements."
4.5 In the Dáil in May 1998, at Committee Stage of the Employment Equality Bill, 1997 (which was enacted as the Employment Equality Act, 1998), an amendment to the section was proposed that would allow "an individual with a particular interest in the matter, as well as the Equality Authority, to take a case". The Minister of State at the Department of Education and Science, on behalf of the Government, opposed the amendment on the basis that "As the publication of such an advertisement is considered a public interest issue rather than an issue which affects any one individual, if individuals were allowed to refer such cases to the courts one advertisement could result in the unnecessary reference to the courts of a multiplicity of cases." He said later that someone who "perceives there to be discrimination as a result of an advertisement can make a complaint to the Equality Authority who can then pursue the matter as a public interest issue." The amendment was not moved.
4.6 It is clear therefore that the intention of the legislature is that such claims may not be referred by individuals, and I must find that I have no jurisdiction to find that the respondent actually named in this claim discriminated against the complainant.
4.7 I would like to say that the respondent's initial response to the claim was less that helpful. Its written submission emphasised that the decision whether to call the complainant for interview was for the advertising company alone to make, and that it had no case to answer. It insisted that it had done nothing wrong and submitted that the claim should be dismissed. It was not until the hearing that the respondent acknowledged that the advertisement as published was in breach of its own equality policy and was a mistake. I did not consider that its response was appropriate for a semi-state body.
5. DECISION
5.1 Based on the foregoing, I find that FÁS did not discriminate against Mr Burke on the ground of age, contrary to the provisions of the Employment Equality Act, 1998. I would, however, recommend that the respondent critically examine its existing procedures to ensure that such an incident does not arise again.
_____________________
Anne-Marie Lynch
Equality Officer
29 March 2004