FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : TULLAMORE & DISTRICT YOUTH ENDEAVOUR LIMITED - AND - PATRICIA BUCKLEY & CATHERINE BUCKLEY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal under Section 83 of The Employment Equality Act, 1998 - DEC-2005-006
BACKGROUND:
2. The complainants referred their case to the Labour Court on the 4th of February, 2005. A Labour Court hearing took place on the 10th June, 2205, in Mullingar. The following is the Court's determination:
DETERMINATION:
This dispute concerns a claim by two complainants that the Workshop (the respondent) discriminated against them on the grounds of gender, marital status, age and disability in terms of section 6(2) (a), (b), (f) and (g) of the Employment Equality Act, 1998 (the Act) and in contravention of Section 8 of the Act, 1998, in relation to access to employment.
The claims were referred by the complainant to the Director of Equality Investigations pursuant to Section 77(1) of the Act.
The claims were investigated together (all facts relating to the complainants and the complaint are similar) by an Equality Officer who held that the respondent had not discriminated against the complainants. It is against that decision of the Equality Officer that the complainants appealed to the Court.
Preliminary Issue
The respondent submitted that the Court jurisdiction to hear and determine this appeal. It made this submission in reliance on section 8 of the Act, which provides protection against discrimination by employers as follows:
- Section 8 (1) In relation to -
(a) access to employment,
(b) conditions of employment,
(d) promotion or re-grading, or
(e) classification of postThis, they say, deprived the Court of jurisdiction to investigate the matter as the claim related to a decision by the respondent to decline the complainants' application for a place on a training course. It is the respondent's contention that the claim is not covered by section 8 (1) as the respondent was not entering into a contract of employment with the complainants.
The respondent states that even if the complainants had been offered a place on the training course that they would never have had a contract of employment with the respondent.
Having considered this preliminary objection to the Court’s jurisdiction, the Court refers to Section 12 (1) and (2) of the Act, which provides protection against discrimination by an educational or training body:
- 12. - (1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not,in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school,discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise) –
(a) in the terms on which any such course or related facility is offered,
(b) by refusing or omitting to afford access to any such course or facility, or
(c) in the manner in which any such course or facility is provided.
- (2) In this section "vocational training" means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.
- InByrne v An Foras Áiseanna Saothair DEC-E-2002/045,the Equality Officer held that it was clear that the services provided by FÁS constituted "vocational training" for the purposes of this section. Similarly, the Court is satisfied that the services provided by the respondent are designed to enable unemployed persons to be trained in a skill for the purposes of attaining employment and that it may be considered as exclusively concerned with training for such an activity.
Accordingly, the Court rejects the respondent’s submission that it lacks jurisdiction to hear and determine this appeal.
Facts
The factual background to the case can be summarised as follows:
On Thursday 19th of June, 2003, the complainants attended for interview in response to an advertisement placed in local newspaper and with the FAS office in Tullamore seeking applications from persons interested in pursuing a career in the hotel and catering industry. The course offered practical catering skills and a FETAC Certificate in Food & Nutrition and Food & Cookery Level One. It was designed to provide employment opportunities and was aimed at those who had not availed of previous training.
Interviews were conducted by the Head Chef and Manager of the Centre. He explained to the complainants the ethos of the training workshop which had been set up many years previously. Originally it had been geared towards people aged between 18-25, but this was no longer the case.
Counsel for the Respondent explained to the Court that where they have a greater number of applicants than places on their courses, it is their policy to select the people whom they deem to be most likely to benefit from the course and to prioritise people who have not received training previously.
The complainants were unsuccessful in their application and, along with a number of other candidates, were informed by a letter dated 23rd June, 2003.
In total 13 people were interviewed and 8 were successful.
The complainants subsequently made a number of telephone calls to the Manager and in an abusive and offensive manner threatened the Respondent.
Complainant’s Case:
-The complainants attended for interview on the 19th of June, 2003, in response to the advertisement, which was placed in the FAS Office in Tullamore.
-The complainants contend that the Manager who interviewed them stated that their age was preventing them from being successful in their application.
-The complainants contend that they were the only two applicants who were unsuccessful in their application to join the training course.
-The Manager who interviewed the complainants indicated that they would not be paid while attending the training course.-The complainants stated that the purpose of the training course was to assist participants in gaining employment and that that was the reason for their application.
-The complainants are female, unmarried, 32 years of age at the time of interview, and have a learning disability. The complainants contend that they were discriminated against on all of these grounds.Respondent's Case-The respondent denies the allegations of discrimination.
-When the Manager who interviewed the complainants explained the ethos and the origins of the training workshop, he explained its origins, which were designed to assist those aged 18 to 25 to seek employment opportunities by providing them with training. It is the respondent’s contention that the complainants may have misunderstood his reference to the previously existing age limit. This age limitation no longer exists and the manager was clear that he indicated this fact to the complainants at interview.
-The respondent was not aware of the complainant’s disability. No reference was made by either side to their disability.
-Along with the complainants, a number of other applicants were unsuccessful at interview and each were informed of the outcome by letter.-The reason the complainants were not successful was due to their previous participation in training courses on CE schemes.
-One of the successful applicants was 31 years of age, the same age as the complainants and, therefore, they could not have been discriminated against. In support of this contention, the respondent citied High CourtWilson v Irish Steel [1999] ELRIwhere the complainant’s claim for equal pay failed on the basis that there was a person of the opposite sex doing like work who was paid the same rate of pay as she was. Both the Labour Court and the High Court upheld the Equality Officer’s finding. The respondents also citedJohn Dickinson Stationary (Ireland) Ltd. EE/2003/042where the complainant alleged discrimination on the grounds of family status, but the Equality Officer found that she had failed to establishprima facieevidence of discrimination in circumstances where the person whom she alleged had been more favourably treated also had family status.
-A number of women applicants were successful and were offered places on the training course.
-No evidence of marital status was adduced from the complainants and none was sought by the respondent.
-The respondent submits that the complainants failed to provide any formal proof or any basis for their claims of discrimination on the grounds of gender, marital status, age or disability.
-In the course of their interview, one of the Complainants accused the respondent of discrimination. He was made to feel uneasy and intimidated by both complainants. Following the interview the complainants made a number of telephone calls and, in an abusive and offensive manner, accused the respondent again of discriminating against them and threatened to take legal action against the respondent
-The respondent submitted to the Court that it had taken other persons with disabilities on its courses in the past.
Conclusions of the Court
The Court has had full regard to the submissions made by both complainants, and the Court accepts that the issue in this case is whether the complainants were discriminated against on grounds of their gender, marital status, age or disability when they were unsuccessful in their application for places on a training course in the Workshop.
The respondent gave details to the Court of the applicants who sought access to participate on the course. Thirteen applicants were interviewed. The respondent indicated that there was a number of both males and females who were successful in their applications.
The Court is satisfied that no evidence had been adduced by either side to substantiate a claim of discrimination on marital grounds.
The Court accepts in giving details to the complainants at the interview on 19th of June, 2003, concerning the general background to the Workshop and its courses, the manager referred to the previous age limit, which applied when the workshop was originally been set up to assist young person to seek employment opportunities. The Court accepts that in the present climate where age discrimination is outlawed it is reasonable that such age limits would no longer apply in this organisation and that this was also explained to the complainants.
The Court also accepts that management was not aware of the complainants’ learning disability, no evidence was provided to that effect. It was not necessary for applicants to complete an application form so details of their education, medical history etc. were not sought. The most significant information to assess suitability for the courses was whether they had participated in similar courses previously.
Evidence was given to the Court by the complainants of their participation on courses in Ballymore Community Employment Scheme and Rosemount Community Employment Scheme. The Court accepts that eligibility for participation on the courses was determined by that criterion. Therefore, others were offered places ahead of them.
Consequently, the Court does not accept that the complainants were treated less favourably on the grounds outlined.
Burden of Proof
In order to succeed, the complainants must first satisfy the Court on credible evidence that they were treated less favourably in their application than other candidates, who were male, had a different marital status, different age and were without a disability. It is only if that burden is discharged that the Court should proceed to consider if a causal link existed between the less favourable treatment so established and the complainants’. The mere assertions of discrimination made by the complainants cannot be accepted as evidence on which the Court could base findings of fact.
This approach is entirely consistent with the procedural rule formulated by this Court inMitchell v Southern Health Board [2001] ELR 2001and which is normally applied by the Court in all cases of discrimination. Under this rule, a complainant bears the onus of proving facts from which discrimination may be inferred. If that onus is discharged, the respondent bears the burden of proving, on the balance of probabilities, that there has been no infringement of the principle of equal treatment.
That is the approach which the Court has adopted in this case.
Based on the information supplied concerning the gender of the successful applicants, the Court can see no grounds to suggest that the complainants were treated less favourably because of their gender.
As no evidence was adduced to substantiate a claim of discrimination on marital grounds the Court finds that the complainants’ claim that they were treated less favourably because of their marital status is unfounded.
The Court is satisfied that one of the successful applicants was the same age as the complainants and, therefore, no grounds have been established to show that the complainants were treated less favourably than other candidates because of their age.
The Court is also satisfied that no evidence has been presented to show that the complainants were treated less favourably than other candidates without a disability.
In the circumstances, the Court does not accept that the complainants' evidence goes far enough to establish aprima faciecase. Accordingly, their case cannot succeed.
Determination
For all of the reasons set out above, the Court finds that the respondent did not discriminate against the complainants on grounds of their gender, marital status, age or disability contrary to the provisions of the Act. Accordingly, the decision of the Equality Officer is affirmed and the appeal disallowed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th August, 2005______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.