EDA0519

FULL RECOMMENDATION

ADE/04/25
ADE/04/26

DETERMINATIONNO.EDA0519

SECTION 83, EMPLOYMENT EQUALITY ACT, 1998

PARTIES :

IRISH SOCIETY OF CHARTERED PHYSIOTHERAPISTS
(REPRESENTED BY MARCUS DOWLING B.L. INSTRUCTED BY
KENT CARTY SOLICITORS)

- AND -

VENERA ILIEVA
TSVETKO MITOV

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash

SUBJECT:
1. Appeal under Section 83 of The Employment Equality Act, 1998 - Dec-E2004-045 (Double appeal).

BACKGROUND:

2. The Labour Court investigated the above matter on the 6th December, 2005. The Court's Determination is as follows:

DETERMINATION:

This is an appeal by the Irish Society of Chartered Physiotherapists against a decision of the Equality Tribunal in so far as it found that the Tsvetko Mitov and Venera Ilieva had been victimised by it in relation to an application for membership of that body. There is also a cross appeal by Mr Mitov and Ms Ilieva against the decision of the Equality Tribunal in so far as it dismissed their claims of discrimination on the race ground in the processing of their application for membership of the body. For ease of reference the parties are referred to herein using the description prescribed at Section 77(4) of the Employment Equality Acts 1998 and 2004. Hence Mr Mitov and Ms Ilieva are referred to as the Complainants and the Irish Society of Chartered Physiotherapists is referred to as the Respondent.

Background

The Complainants are Bulgarian. They applied for membership of he Respondent in April 2002. The Respondent is the designated sole and competent authority on behalf of the Minister for Health for the purpose of recognising qualifications for the practice of physiotherapy. The Complainants contend that they qualified to practice the profession of physiotherapist in Bulgaria. They were refused recognition on the basis that their qualifications did not meet the requisite standard in Ireland.

The Complainants made a complaint to the Equality Tribunal pursuant to Section 77 of the Act alleging discrimination on grounds of their race. They further alleged that they were victimised by the Respondent consequent on initiating the within proceedings. The Equality Officer found that the Complainants were not discriminated against since their qualifications were not up to the standard required by the Respondent. However, the Equality Officer did hold with the Complainants in their claim of victimisation.

At the commencement of the hearing of this appeal the Respondent withdrew its appeal against the finding of victimisation. Consequently the only issue for determination is the Complainants appeal.

While the Equality Tribunal separately dealt with the complaint in the case of each Complainant, the Court is satisfied that the facts and legal issues arising in each appeal are identical in all material respects. The Court therefore considers it convenient to deal with both appeals in a single determination.

Issue for Consideration

The Court is satisfied that the respondent is a body which controls 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. The Court is also satisfied on the evidence that the Equality Officer’s conclusion that the Complainant did not possess the required qualifications at the time they applied for membership of the Respondent is correct. Moreover, it is clear that the same standards were applied in considering the complainants’ applications as are applied by the respondent to all applications regardless of the nationality of the applicant.

However, in cases where a national of a EU Member State lacks qualifications in a particular subject the Respondent allows them to undertake a period of adaptation in that subject. No such facility is afforded to nationals of countries outside the EU. On this account the Complainant were not offered the facility of augmenting their qualifications by taking an adaptation course at the time their applications were first considered. Subsequently, by letter dated 12th July 2004, after the completion of the hearing before the Equality Officer, the Respondent wrote to the Complainants offering them the facility of undertaking a course in treating acute cardiorespiratory failure. However between April 2002 and 12th July 2004 the Respondent failed to offer the Complainants this facility because they were not EU nationals. Hence the net question for consideration by the Court is whether or not that failure constituted unlawful discrimination

This aspect of the case appears not to have been ventilated before the Equality Officer but was raised in the course of the hearing before the Court. Counsel for the respondent was invited to make further written submissions on this point. However the Solicitors for the respondent subsequently wrote to the Court and advised that they did not intend making further submissions.

In defence of the impugned arrangements Counsel for the Respondent relied on Article 3(2) of Directive 2000/4/43EC Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin. This Article provides as follows:

This Directive does not cover differences in treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

This Directive further provides at Article 6(2) that its implementation shall not constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the field covered by the Directive. Hence, in so far as the Act provides better protection against racial discrimination, its provisions prevail over those of the Directive.

Section 6(1)(h) of the Act defines discrimination on the race ground as including nationality or ethnic or national origin. It thus provided better protection than Directive 2000/43/EC.

Counsel also referred the Court to Section 12(7) of the Act which provides as follows:

Nothing in subsection (1) shall make unlawful discrimination on the age ground or the ground of race in respect of any course of vocational training offered by a vocational or training body where—
- (a) it provides different treatment in relation to—
  - (i) the fees for admission or attendance at any such course by persons who are citizens of Ireland or nationals of another Member State of the European Union, or
    
    (ii) the allocation of places on any such course to those citizens or nationals, or
  (b) it offers assistance to particular categories of persons by way of sponsorships, scholarships, bursaries or other awards, which assistance is reasonably justifiable, having regard to traditional or historical considerations.

The Court does not accept that this provision can avail the Respondent. As the Section provides an exception to the general prohibition of discrimination on grounds of age or race it must be construed strictly and should be given no wider scope that the word used actually suggest. The wording of the Section authorises different treatment as between EU and non-EU nationals in respect of the allocation of places on vocational training courses. Its clear purpose is to allow providers of vocational training or professional education to give priority to EU nationals in the allocation of places or to charge non-EU nationals higher fees. What is at issue in the instant case is not the allocation of places on a course of training but a rule or practice which allows for augmentation of qualifications in the case of EU nationals but denies non-EU nationals a similar facility. In the Court’s view such a rule could not be saved by Section 12.

Accordingly the Court is satisfied that the respondent discriminated against the complainants when it rejected their applications for membership without offering them the opportunity to undergo a period of adaptation.

Determination

The respondent did discriminate against the complainant contrary to Section 13 of the Act. The Court considers that the appropriate redress is an award of compensation. In that regard the Court’s monetary jurisdiction in this case in limited to €12,700. Having regard to all the circumstances the Court determines that the appropriate award in this case in one in the amount of €10,000, which amount is in respect of the affects of discrimination.

Signed on behalf of the Labour Court

Kevin Duffy
22nd December, 2005______________________
JBChairman

NOTE

Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.