DEC-E2005-010 Full Case Report

Barry (represented by David O' Dwyer B.L. instructed by Daniel Murphy & Co., Solicitors) -v- The Department of Justice, Equality and Law Reform (represented by David Keane B.L. instructed by Edward J.P. Hanlon, Acting State Solicitor, Cork City)

CLAIM
1. The case concerns a claim by Mr. Sean Barry that the Department of Justice, Equality and Law Reform directly discriminated against him on the marital status and age grounds in terms of section 6(2)(b) and (f) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to training in employment.
BACKGROUND
1. The complainant claims that the respondent discriminated against him in relation to his application for a refund of fees on two occasions. He submits that the applicants who have been successful are all in their thirties and are unmarried. The respondent submits that it did not discriminate against the complainant on the marital status or age grounds. Additionally, it submits that even if there had been discrimination on the age ground against the complainant in the course of his employment, it could not form the basis of an admissible claim by virtue of section 37(6) of the Act which provides, inter alia, in relation to the age ground, Part II or Part IV of the Act do not apply to employment in An Garda Siochana. The complainant submits that section 37(6) only applies to recruitment to the force and that to extend the ambit of the section beyond recruitment is to give this section too broad a reading.
2. The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 9 October 2002. On 13 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. The case had previously been assigned to another Equality Officer. A submission was received from the complainant on 2 July 2003 and from the respondent on 9 October 2003. A joint hearing of the claim was held on 8 November 2004. A supplementary submission was received from the complainant on 24 November 2004 and a supplementary submission was received from the respondent on 20 December 2004.
SUMMARY OF THE COMPLAINANT’S SUBMISSION
1. The complainant submits that the procedure for obtaining a refund of fees is that he applies in writing to his Sergeant in the local station. It is then sent to Togher and from there to Anglesea Street to the Chief Superintendent and lastly to the Assistant Commissioner in Templemore for his approval. At each stage, the supervisor writes his or her recommendations on the application and this determines whether an applicant Garda is successful or not. He submits that there is a convention in the Garda Siochana that if the Superintendent at local level recommends the application, then one is successful.
2. The complainant submits that the Sergeant in Douglas Station recommended his application and the Superintendent subsequently wrote on the application that he had not gone forward for promotion for years. He submits that such a comment would not have been made of a member of junior rank. He submits that the Chief Superintendent agreed with what Superintendent C wrote and added the line that a BCL Degree would be of no benefit to him in his current capacity. He further submits that the benefit to the force of a BCL Degree has long been established.
3. The complainant submits that the Assistant Commissioner never read the file but read the appendix that was put on the cover of the file by his personal secretary who read the file and told the complainant that she did not make the decision whether to grant him the fees.
4. The complainant submits that the Superintendent has discriminated against him in the past and arising out of comments made on 9 January 2001 discriminated against him in his application to obtain funding for College fees. He submits that on 15 June 2003, the Superintendent stated to him “you look very tired today and what age are you now?” He submits that the statement was a direct reference to his age and an indirect reference to the fact that he had 28 years of service as a Garda. He submits that the comment displayed that the Superintendent was prejudiced towards him at the very least because of his age and submits that he felt humiliated and discriminated against.
5. The complainant submits that as a reason for refusing payment of fees, the State has indicated that he can retire with 30 years service in 2006. He submits that again, this is a direct judgment based on his age and reference to this would not be made in a similar application by a member of junior age. He submits that two students in his year in their twenties are being funded and that people he knows of junior age who have undertaken the course are funded in some way and submits that there is blatant discrimination by his superiors.
SUMMARY OF THE RESPONDENT’S SUBMISSION
1. The respondent submits that the complainant has not indicated the specific type of discriminatory treatment alleged by reference to a particular subsection of section 8 of the Act. It submits that the complainant has not furnished any evidence in respect of his claim of discrimination the grounds of marital status and age.
2. Chapter (F) 13 of the Garda Siochana (Finance) Code sets out the details of the policy relating to members wishing to attend educational courses at public expense in institutions other than the Garda College. Section (F) 13.4 sets out the ‘Criteria for Assessment of Applications’. It states as follows:
  
  “Each application will be considered on its merits. Only those applications which have the best overall ‘potential’ will be approved.”
3. In the academic year 2002/2003 the statistics for refunds are:
  - Total applicants considered -191
  - Total approved for funding – 179
  - Of the total approved – 95 were married, 49 were single, 35 did not state their marital status
  Of the applications considered for funding:
  - 30 were from members over 45 years of age
  - 26 applications from members over 45 years of age were approved
  - Of the 26, 8 were over 50 years of age.
4. A consideration of the service profile of all applicants for the academic year 2002/2003 discloses that 12 applicants who were senior to the complainant in service and who were older than him were successful in their applications.
5. The respondent contends that the complainant’s application failed on its individual merits, in particular by reference to an assessment of the complainant’s own individual efficiency and conduct, and was in no way influenced by any suggestion of age or marital status discrimination. Applications for approval for fee refunds are processed through District Officers and Divisional Officers. The suggestion that a local Superintendent’s recommendation is merely rubber-stamped above that level and that no proper adjudication takes place thereafter is as unwarranted as it is unsupported by evidence.
6. The respondent submits that the complainant is wrong in asserting that Sergeant Q recommended his application. His application was not recommended by Sergeant R, Sergeant T or Inspector O’ B. Sergeant Q expressed concern with the complainant’s return of work, file presentation and difficulties in inputting Pulse Accidents. Sergeant T considered the complainant’s overall work performance unsatisfactory. Sergeant R felt unable to recommend the application by reference to the criteria “overall potential” and “efficiency”. Inspector O’B formed the view that the complainant did not meet the criteria set out in Code (F)13.4 and informed Superintendent C accordingly.
7. The respondent cannot accept the complainant’s assertion that his failure to go forward for promotion for a number of years ought to have been considered immaterial or irrelevant to his application. Section (F) 13.2 of the Code requires applicants to include details of their aspirations for promotion as relevant information and the information is required equally from members of greater or lesser service or experience. The respondent’s concern regarding the complainant’s failure to seek promotion demonstrates that his application was considered by reference to his own individual characteristics and was not determined by his age or marital status.
8. Superintendent C consulted with the complainant’s Sergeant in charge and with Inspector O’ B and by telephone with Chief Superintendent Mc A. After careful consideration, the Superintendent determined that the complainant’s application could not be recommended by reference to his poor performance as a member. When it was forwarded to him, Chief Superintendent Mc A gave the complainant’s application full consideration before making his own recommendation and did not merely rubber stamp Superintendent C’s recommendation. Ultimately, Assistant Commissioner M gave the application careful consideration before refusing it, having taken into consideration a number of issues set out in the Finance Code, including the period of time prior to retirement during which the member was likely to be effective. That period of time is a function of rank and experience and not of age. At no stage in the decision making process was any reference made to, or reliance placed upon the complainant’s age or marital status.
9. The complainant submits that Superintendent C is personally biased against him. This matter should be raised in the context of An Garda Siochana’s own internal grievance procedures and the allegation is outside the scope of the Employment Equality Act, 1998.
10. The respondent disputes that a presumption has been made that he will retire in 2006. It has been noted by Assistant Commissioner M that the complainant “could opt to retire on full pension on 17 February 2006.”. The statement is not referable to the complainant’s age, it is referable to his rank and his service. Twelve applicants who are senior to the complainant in age and service were awarded funding in 2002/2003.
11. The respondent rejects the complainant’s allegation that there was marital or age discrimination in the decision to refuse an educational course fee refund to the complainant. The respondent submits that the complainant has provided no evidence whatsoever of any such discrimination and that all of the available information confirms that it simply did not occur.
SUMMARY OF THE COMPLAINANT’S SUPPLEMENTARY SUBMISSION
1. The complainant responded to an oral submission made by the respondent at the hearing in relation to the application of section 34(3) and section 37(6) of the Act to the claim. Section 34(3) provides that:
  
  Nothing in this Part or Part II shall make unlawful discrimination on the age ground in circumstances where it is shown that there is clear actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted in those circumstances.
2. The complainant submitted that section 34(3) must be accorded a limited interpretation and can only be invoked in situations where an employer has carried out a thorough assessment of the value which can be put on any training invested in a person. He submitted that section 34(3) is ordinarily invoked in pre-employment situations where an employer may take a discriminatory decision where that decision is justified by reference to actuarial or statistical evidence.
3. The respondent in this case did not tender any evidence which would demonstrate that the decision to grant the complainant a refund would result in “significantly increased costs”. The respondent did not introduce any evidence of an actuarial or statistical nature so as to allow the Tribunal to consider whether section 34(3) may be invoked. An attempt to justify the decision based on this section three years after the event is plainly outside the ambit of the section.
4. Section 37(6) of the 1998 Act states:
  
  In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment –
  
  (a) in the Defence Forces,
  
  (b) in the Garda Siochana, or
  
  (c) in the prison service.
5. The complainant submits that section 37(6) is concerned with an apprehension on the part of the Minister for Justice, Equality and Law Reform that the operational capacity of An Garda Siochana would be adversely affected if the Minister could not take age into account in respect of competitions for recruitment to the force. He submits that extending the ambit of this section beyond recruitment is to give this section too broad a reading. The age of a person applying to join An Garda Siochana is a matter which goes to the operational capacity of the force. It may be appropriate therefore that the Minister take age into account in respect of recruitment. It would not however be appropriate to extend these considerations into the area of access to education and training.
SUMMARY OF THE RESPONDENT’S SUPPLEMENTARY SUBMISSION
1. The respondent seeks to primarily rely on section 37(6) of the Act. The words of the section are simple, clear and unambiguous. The complainant contends that the words ‘employment in the Garda Siochana’ should be interpreted to mean ‘recruitment into the Garda Siochana’ and that, in consequence, all other aspects of employment should be deemed to fall outside the relevant provision. This means ignoring the plain words of the section in favour of the interpretation for which the complainant contends.
2. The respondent submits that had the Oireachtas intended to limit the ambit of section 37(6) to merely ‘recruitment into’, rather than ‘employment in’, the Garda Siochana, it could have done so by the straightforward expedient of enacting the former words rather than the latter. Section 37(6) can be contrasted with Section 77(7), which deals with the appropriate forum for seeking redress in respect of an employment equality claim. Section 77(7) requires a complaint of discrimination against the Commissioner of the Garda Siochana ‘in the course of the recruitment process for the Garda Siochana’ to be referred in the first instance to the Commissioner. Accordingly, where the Oireachtas wished to limit the scope of one of the Act’s provisions to the sphere of ‘recruitment into’ rather than ‘employment in’, it did so by express words.
3. The respondent denies that there has been any discrimination against the complainant. In that context, the respondent relies on section 37(6) of the Act only to the extent that had there been age discrimination against the complainant, it could not, in any event, form the basis of an admissible complaint under the Act by virtue of the terms of that sub-section.
4. The respondent places only limited reliance on the terms of section 34(3) of the 1998 Act. Nevertheless, the respondent submits that even if there had been age discrimination against the complainant in his employment and even if Part II and IV were capable of applying to such discrimination, it would nevertheless be lawful discrimination on the basis of the evidence that significantly increased costs would result if the discrimination were not permitted in the circumstances. The total cost of the fee refunds sought for educational courses in the academic year 2002/2003 was €438,995 (in respect of 211 applicants) and the total cost of the 179 applications approved was €227,258.
CONCLUSION OF THE EQUALITY OFFICER
1. In this case, the complainant alleges that the respondent directly discriminated against him on the marital status and age grounds in relation to training in his employment. I will therefore consider whether the respondent directly discriminated against the complainant on the marital status and age grounds in terms of section 6(2)(b) and (f) of the Employment Equality Act, 1998 in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
2. Section 8(1) of the Employment Equality Act, 1998 provides
  
  In relation to->
  (a) access to employment
  (b) conditions of employment,
  (c) training or experience for or in relation to employment,
  (d) promotion or re-grading, or
  
  an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
3. Section 8(7) provides:
  
  Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities of employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
4. Discrimination on the age ground
  
  At the hearing, the respondent raised section 37 of Part IV of the Act which provides for the exclusion of discrimination on particular grounds in certain employments. In particular, it raised section 37(6) which provides:
  
  In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment –
  
  (a) in the Defence Forces,
  (b) in the Garda Siochana, or
  (c) in the prison service.
  
  The complainant requested an opportunity to respond and subsequently provided a written submission. The respondent provided a replying submission. Part II of the Act sets out the general provisions in relation to discrimination and Part IV sets out the specific provisions on equality between other categories of persons, i.e. on the non-gender grounds which includes the age ground. The complainant’s claim is brought under Parts II and IV. I have considered subsection (6) of section 37 of the Act and I consider that it is clear and unambiguous in relation to the application of the subsection to employment in An Garda Siochana. Accordingly, I do not accept the complainant’s contention that the exclusion contained in that subsection is limited to recruitment to An Garda Siochana only. Accordingly, neither Part II nor Part IV is applicable to discrimination on the age ground in employment in the Garda Siochana. The complainant cannot, therefore, pursue a claim of discrimination on the age ground in relation to his employment in the Garda Siochana. I will, however, proceed to consider his claim of discrimination on the marital status ground.
5. Claim of discrimination on the marital status ground
  
  The complainant in this case alleges that he was refused a refund of his fees for the 2001/2002 and 2002/2003 years in respect of an evening course in UCC. Chapter (F) 13 of the Garda Siochana Finance Code entitled ‘Educational Courses’ provides at section 13.2 that applications should include, inter alia (a) a Curriculum Vitae, (ii) particulars of service in the office (date of attestation, work experience etc.), years of potential service and aspirations for promotion, (iii) details of the relevance of the course to the Garda Service and how the applicant envisages utilising the course, (iv) details of the course and (v) the estimated cost. Section 13.3 provides that each application seeking approval must be accompanied by a detailed report and a recommendation from the applicant’s District Officer which should be channelled thought the applicant’s Divisional Officer who makes recommendations regarding the application. The report should include details of (a) the applicant’s work experience, efficiency, work output, disciplinary record and sickness record (b) relevance of the course and the benefits which are likely to accrue to the Force and (c) firm recommendations of the reporting officers.
6. Section 13.4 provides that each application will be considered on its merits and that only those applications which have the best overall “potential” will be approved. It further provides that the criteria for assessment include (a) benefits which will directly accrue to the Force, (b) demand within the Force for the skills which the applicant proposes to attain, (c) efficiency, conduct etc of the member concerned and (d) funding available. The respondent submitted the reports made at the relevant time by the Sergeant, Superintendent, the Chief Superintendent and the Assistant Commissioner involved in the application process in respect of the 2001/2002 academic year. The Sergeant when forwarding the application to the Superintendent stated “This application is forwarded.” The Superintendent in July 2001 stated, inter alia, in respect of the complainant’s application:
  
  “(b) A BCL law degree would benefit the member in his work. However, although the member is qualified for promotion, it is now unlikely that he will be promoted to the rank of Sergeant. I feel that such a degree would be above the standard necessary for the work the member is currently implied (sic) on.
  
  (c) I feel that the standard of this course is not relevant to the work the member is likely to be engaged on to the termination of his service.”
7. The Chief Superintendent at the relevant time stated:
  
  “I feel that this course is not relevant to the work Garda Barry is likely to be engaged on to the termination of his service and the benefits which would be likely to accrue to An Garda Siochana from this course are limited.”
  
  He proceeded to state that he agreed with the recommendations of the Superintendent and that he did not recommend the application. The Assistant Commissioner stated that having carefully considered the complainant’s application, it was not possible to sanction the application for a refund of fees. In his written letter of 10 September 2001, he did not state the reasons why he did not sanction the refund. At the hearing, the Assistant Commissioner stated that he did not merely rubber stamp the decisions made by the Superintendent and Chief Superintendent. He submitted that he would have relied heavily on the recommendations made but he makes the final decision and that he does not necessarily reach the same decision in every case and that each case is decided on its merits.
8. The respondent also submitted the reports made by the Superintendent, the Chief Superintendent and the Assistant Commissioner involved in the application process in respect of the 2002/2003 academic year. The same Superintendent and Assistant Commissioner were involved in the process that year and a different Chief Superintendent was involved in the process. The Sergeant in charge did not make any observations in relation to the application as the complainant went directly to the Superintendent’s office with it. The application was not recommended by the Superintendent who referred to the level of qualification not being necessary for the work carried out by the complainant and that the complainant was unlikely to be promoted. The Chief Superintendent referred to the level of qualification not being necessary for the work being carried out by the complainant and that the course would therefore not benefit An Garda Siochana in the future. He agreed with the Superintendent’s recommendation and did not recommend the application. The Assistant Commissioner subsequently did not sanction the refund. In his written letter of 19 September 2002, he did not state the reasons why he did not sanction the refund.
9. The complainant’s marital status was married at the time of both applications for a refund. He submits that the applicants who have been successful in obtaining refunds are unmarried. The respondent submitted the statistics for the academic years 2001/2002 and 2002/2003. The statistics for the 2001/2002 academic year show that there were 219 applications for refunds, 177 were approved, 27 were refused, 2 were withdrawn and 13 were not considered as they were received late. The statistics for the marital status of those approved indicate that 69 were married, 37 were single and 71 did not state their marital status. It is difficult to draw any conclusion in relation to these statistics as 40% of the applicants approved did not state their marital status. In relation to the applications refused for that academic year, 12 were married, 2 were single, 1 was widowed and 12 did not state their marital status. Again, it is difficult to draw any conclusions in relation to the statistics for applications refused as the marital status of 44% of the applicants refused is unknown. The statistics for the 2002/2003 academic year show that 211 people applied for funding for various courses with 179 applications approved and 12 refused, 12 withdrawn and 8 not considered as they were received late. The statistics also show that 95 applicants approved were married, 49 were single and 35 did not state their marital status. Accordingly, even if the 35 who did not state their marital status were in fact single, a greater number of applicants who were approved for a refund were in fact married. The statistics for that year also show that of those refused, 3 were married, 4 were single and 5 did not state their marital status.
10. At the hearing, the complainant named a person who was unmarried and who received a refund of his fees. I note that the Labour Court has stated:
  
  “The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination.”¹
  
  Similarly, in this case, a difference in marital status between the complainant and a person who was refunded, is in itself and in the absence of other factors insufficient to raise a presumption of discrimination on the marital status ground.
11. Evidence that the respondent, at any stage, sought information from the complainant in relation to his marital status or evidence that the persons considering the complainant’s refund application took the complainant’s marital status into account during the process has not been presented by the complainant. The statistics provided are not in themselves sufficient to establish that the complainant was discriminated against on the marital status ground and in respect of the academic year 2002/2003 do not actually support the complainant’s contention in this regard. I am not satisfied that the complainant has established any facts that would raise a presumption of discrimination, and I therefore find that he has not established aprima facie case of discrimination on the marital status ground in relation to his applications for a refund of fees.
DECISION
1. In view of the foregoing, I find that the relevant provisions of the Act under which the complainant’s claim of discrimination on the age ground in employment was referred are not applicable to employment in the Garda Siochana in accordance with section 37(6) of the Act.
2. I find that the complainant has failed to establish a prima facie case of direct discrimination on the marital status ground in terms of section 6(2)(b) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to his applications for a refund of fees.

Mary Rogerson ,
Equality Officer,
25 February 2005